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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GILBERTO L. QUINONES,

                         Appellant                   No. 988 MDA 2014


             Appeal from the PCRA Order entered May 13, 2014,
         in the Court of Common Pleas of Northumberland County,
            Criminal Division, at No(s): CP-49-CR-0000164-2008


BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

MEMORANDUM BY ALLEN, J.:                              FILED JUNE 05, 2015

      Gilberto L. Quinones (“Appellant”) appeals pro se from the order

denying his petition for relief under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. sections 9541-46. We affirm.

      The pertinent facts and procedural history are as follows.     In March

2008, the Commonwealth charged Appellant with committing multiple sexual

offenses against three girls, then ages six or seven:     F.B., N.L., and Z.L.

Following the denial of Appellant’s pre-trial motion, which sought, among

other things, the suppression of his statements to police, Appellant’s jury

trial began on January 14, 2010. At the close of the Commonwealth’s case,

the trial court granted the defense’s demur to all charges relating to Z.L.

See N.T., 1/14/10, at 126.      Appellant then testified on his own behalf.

Ultimately, the jury convicted Appellant of all the remaining charges.      On
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April 5, 2010, the trial court imposed an aggregate sentence of nine to

twenty-two years of imprisonment.

        Following the denial of his post-sentence motion, Appellant filed a

timely appeal to this Court. Appellate counsel filed an Anders1 brief and a

petition   to   withdraw.       In   his   appeal,   Appellant   claimed:     1)   the

Commonwealth erred in not allowing Appellant access to evidence “that

would play a significant [sic] role in [Appellant’s] defense”; 2) the trial court

erred in failing to strike improper remarks by the prosecutor during her

closing argument; 3) ineffective assistance of counsel; 4) “[p]erjury by the

Commonwealth”; 5) the trial court lacked jurisdiction regarding N.L.’s

testimony; and 6) the trial court erred in “allowing the prosecution to

redirect witness F.B.” See Commonwealth v. Quinones, 43 A.3d 525 (Pa.

Super. 2012), unpublished memorandum at 3.

        On January 23, 2012, this Court concluded that Appellant’s ineffective

assistance of counsel claim must await collateral review, and agreed with the

trial court that Appellant’s remaining claims did not entitle him to relief.

Thus, we adopted the opinion of the trial court, the Honorable Charles H.

Saylor,    in   affirming   Appellant’s    judgment    of   sentence.       Quinones,

unpublished memorandum at 4.


____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).




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        On December 20, 2012, Appellant filed a timely PCRA petition and the

PCRA court appointed counsel. On January 28, 2014, PCRA counsel filed a

motion to withdraw and a “no-merit” letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).2 On March 24, 2014, the PCRA court

issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition

without a hearing. Appellant filed a pro se response on April 11, 2014. By

amended order filed on May 13, 2014, the PCRA court dismissed Appellant’s

PCRA petition.3 This timely pro se appeal followed. Both Appellant and the

PCRA court have complied with Pa.R.A.P. 1925.

        Within his pro se brief, Appellant phrases his issues as follows:

           I. Was [trial] counsel ineffective for allowing false
           testimony____ Dismissed charges of (Z.L.), along with
           [that of Corporal Blase] during trial, as well as at closing
           argument to be used to capitalize on.

           II. Was [trial] counsel ineffective for not objecting to the
           destruction of notes and suppression of evidence by the
           Commonwealth.

           III. Was [trial] counsel ineffective for not objecting the
           [the prosecution’s] last minute disclosure.

           IV. Was [trial] counsel ineffective for allowing _______
           this expert to bolster testimony.

____________________________________________


2
    PCRA counsel characterized his filing as an “Anders Brief.”
3
  There is no indication in the record that the PCRA court acted on PCRA
counsel’s motion to withdraw.




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         V.  Did [the trial court’s] abuse of discretion contribute to
         [Appellant] receiving an unfair trial.

         VI.    Was [trial] counsel ineffective for not requesting a
         taint hearing.

Appellant’s Brief at 7.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the      evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).        Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,

1104 (Pa. Super. 2001).

      To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42

Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been

previously litigated.     Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012).   An issue has been “previously litigated” if “the highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue, or if the issue has been raised and decided

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in a proceeding collaterally attacking the conviction or sentence.” Koehler,

36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2).        If a claim has not been

previously litigated, the petitioner must prove that the issue was not waived.

An issue will be deemed waived under the PCRA “if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal, or in a prior state post[-]conviction proceeding.”     Id. at 132; 42

Pa.C.S.A. § 9544(b).

        Moreover, to the extent Appellant challenges the effectiveness of trial

counsel, we note that to obtain relief under the PCRA premised on a claim

that counsel was ineffective, a petitioner must establish 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.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009). “Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that:    (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission.        Id. at 533.    A finding of

“prejudice” requires the petitioner to show “that there is a reasonable

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

proceeding would have been different.”       Id.   Counsel cannot be deemed


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ineffective for failing to pursue a meritless claim.       Commonwealth v.

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852

A.2d 311 (Pa. 2004).

      A review of Appellant’s arguments in support of the issues he raises on

appeal reveals a rambling discourse which, at times, is incomprehensible

and refers to wholly inapposite case and statutory authority.        In addition,

Appellant’s argument in support of each issue tends to reappear in support

of a separate issue. To the extent we understand Appellant’s issues, we will

attempt to address them.

      In his first issue, Appellant asserts that trial counsel was ineffective for

allowing the “false testimony” of Z.L. and Corporal Blase to be introduced at

trial, and allowing the prosecutor to “capitalize” on this false testimony by

referencing it in her closing argument.       As noted above, the trial court

dismissed all charges filed against Appellant relative to Z.L.          Appellant

cannot establish he was prejudiced by trial counsel’s alleged failure to cross-

examine Z.L. about prior inconsistencies in her testimony.

      Regarding Appellant’s claim that trial counsel should have objected to

the prosecutor’s reference to the dismissed charges in her closing argument,

the PCRA court concluded that the prosecutor’s “comments to the jury

regarding a child as to whom the charges against [Appellant] had been

dismissed were not prejudicial and a timely objection would not have

changed the outcome of the trial.” PCRA Court Opinion, 10/1/14, at 2. Our


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review of the record supports this conclusion. Additionally, we note that trial

counsel   specifically   requested    permission   to    reference   the   dismissed

charges, see N.T., 1/14/10; thus, the prosecutor’s reference to them

constitutes   fair   response    to    the    defense     closing.     See,    e.g.,

Commonwealth v. Koehler, 737 A.2d 225, 240 (Pa. 1999) (explaining that

“the prosecutor is permitted to respond to defense arguments and is free to

present his or her case with logical force and vigor.”).

      In his direct appeal, Appellant asserted that “the Commonwealth did

not allow him access to evidence that would play a ‘significant role’ in his

defense.” Trial Court Opinion, 9/16/10, at 3. The trial court assumed that

Appellant was referring to testimony from Corporal Blase that he destroyed

his notes of his interview with Appellant, once the corporal summarized

them within his affidavit of probable cause.            Noting that the claim was

waived for lack of contemporaneous objection, the trial court nevertheless

rejected Appellant’s argument, because Appellant “offered no case law or

statutory authority for the proposition that the officer is under any obligation

to preserve his interview notes.” Id.

      Within his brief, Appellant now argues that trial counsel was ineffective

for failing to object to the “false” testimony of Corporal Blase because there

is “‘zero’ evidence of any summary written by” him. Appellant’s Brief at 16.

From our review of the record, it is clear that the summary to which

Corporal Blase referred during his testimony was the affidavit of probable


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cause supporting the charges filed against Appellant.        Thus, our review of

the record refutes this ineffectiveness claim.

       In his second issue, Appellant raises the related claim that trial counsel

was ineffective for failing to object to the destruction of the interview notes.4

Once again, Appellant cites no binding authority requiring the police to

preserve their interview notes.         Additionally, as noted by the PCRA court,

“[a]t trial, counsel for the defense was able to cross-examine the police

officer who destroyed his notes after preparing the affidavit of probable

cause, effectively bringing the issue to the jury’s attention.”      PCRA Court

Opinion, 10/1/14, at 2. Appellant’s second ineffectiveness claim also fails.

       In his third issue, Appellant asserts that trial counsel was ineffective

for failing to object to the prosecutor’s last minute disclosure, which resulted

in “trial by ambush.” Appellant’s Brief at 26. Appellant bases this claim on

the fact that the Commonwealth called its expert witness earlier than

expected, thus requiring Appellant to present his defense earlier than

expected. See N.T., 1/14/14, at 124-26. Our review of the record reveals

that the trial court directed trial counsel to discuss the matter with

Appellant. Following a fifteen-minute recess, trial counsel, after demurring

____________________________________________


4
  Appellant also claims a discovery violation regarding the written statement
from the mother of two of the victims. Because Appellant did not adequately
raise this claim in his Pa.R.A.P. 1925(b) statement, the PCRA court did not
address it. Thus, the claim is waived on appeal. See generally, Pa.R.A.P.
1925.



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to the evidence and obtaining a dismissal of charges involving Z.L., called

Appellant to testify in his own defense. Within his brief, although Appellant

now claims that trial counsel should have asked for a one-day delay so that

his wife could appear as a witness on his behalf, he proffers no information

which she would have provided to aid in his defense.        Again, Appellant’s

ineffectiveness claim is meritless.

      In his fourth issue, Appellant asserts that trial counsel was ineffective

for not objecting to the testimony of the Commonwealth’s expert, Patrick

Bruno, M.D., which served to bolster the testimony from one of the victims.

The improper testimony to which Appellant refers is the prohibition of expert

testimony that would “intrude upon the jury’s basic function of deciding

credibility.” Commonwealth v. Spence, 327 A.2d 1176, 1182 (Pa. 1993);

see also Commonwealth v. Robinson, 5 A.3d 339, 342-343 (discussing

cases involving sexual abuse of children and the proper limit of expert

testimony). Our review of Dr. Bruno’s trial testimony reveals no improper

bolstering of the victim’s credibility.     See N.T., 1/14/10, at 88-103.

Appellant supports his claim by referring to Dr. Bruno’s comparison, upon

cross-examination by trial counsel, of actions by the victim in self-

manipulation vis-à-vis sexual assault by an adult, to support his conclusion

that the damage to the victim’s hymen was caused by the latter. See N.T.,

1/14/10, at 99-100. This ineffectiveness claim fails.




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      In his fifth issue, Appellant essentially argues that the trial court’s

actions during trial established a bias against him. Because this claim could

have been raised on direct appeal, it is waived under the PCRA.           See

Koehler, 36 A.3d at 132; 42 Pa.C.S.A. § 9544(b).

      In his sixth and final claim, Appellant asserts that trial counsel was

ineffective for failing to request a taint hearing with regard to the child

victims.   In support of this argument, Appellant cites Commonwealth v.

Delbridge, 855 A.2d 27 (Pa. 2003).         In Delbridge, our Supreme Court

stated:

           In order to trigger an investigation of competency on the
           issue of taint, the moving party must show some evidence
           of taint. Once some evidence of taint is presented, the
           competency hearing must be expanded to explore this
           specific question. During the hearing the party alleging
           taint bears the burden of production of evidence of taint
           and the burden of persuasion to show taint by clear and
           convincing evidence. Pennsylvania has always maintained
           that since competency is the presumption, the moving
           party must carry the burden of overcoming that
           presumption. As this standard prevails in cases where the
           witness’s memory may have been corrupted by insanity,
           mental retardation or hypnosis, we see no reason to alter
           it in cases where the memory of the witness is allegedly
           compromised by tainted interview techniques. Further, as
           the burden in all other cases involving incompetency is
           clear and convincing evidence, we will continue to apply
           that existing legal requirement for cases involving taint.
           The clear and convincing burden accepts that some
           suggestibility may occur in gathering the evidence, while
           recognizing that when considering the totality of the
           circumstances, any possible taint is sufficiently attenuated
           to permit a finding of competency. Finally, as with all
           questions of competency, the resolution of a taint
           challenge to the competency of a child witness is a matter
           addressed to the discretion of the trial court.

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Delbridge, 855 A.2d at 40-41 (citations omitted).

       Here, Appellant has failed to proffer evidence that would meet his

burden. At trial, after relevant inquiry by the parties, each child witness was

deemed competent. See N.T., 1/14/10, at 26 (F.B), 68 (N.L.), at 80 (Z.B.).

In support of his claim, Appellant refers to trial counsel’s inquiry upon cross-

examination of one or more of the victims with regard to whether their

memories were “refreshed” by the prosecutor. See Appellant’s Brief at 37.

When read in context, it is clear that each victim’s testimony was not tainted

by the prosecutor, but rather the victims testified based on their memory of

the sexual abuse perpetrated by Appellant.         Because the record refutes

Appellant’s claim that the victims’ testimony was tainted, trial counsel

cannot be found to be ineffective for failing to request a taint hearing. 5

       For the above reasons, we affirm the PCRA court’s order denying

Appellant’s PCRA petition.




____________________________________________


5
  We likewise reject Appellant’s claim of taint based on the mother of two of
the victims testifying that she always told her daughters to disclose any
instances of sexual abuse. See Appellant’s Brief at 36-37.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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