J-S07019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEMUEL MARRERO-MONGE, JR.                  :
                                               :
                       Appellant               :   No. 437 MDA 2018

                Appeal from the PCRA Order February 21, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0004798-2010,
                           CP-22-CR-0004800-2010


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JUNE 04, 2019

       Lemuel Marrero-Monge, Jr. appeals from the order dismissing his

petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

We conclude that Marrero-Monge has waived the claims he raises on appeal

and that, even if he had not waived them, the claims lack merit. We affirm.

       Marrero-Monge was arrested for the murder of Jonathan Martinez

(“victim”). Jermaine Williams witnessed the shooting, identified Marrero-

Monge from a photo-array, and identified him in court as the shooter.1

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*    Retired Senior Judge assigned to the Superior Court.

1 For a complete recitation of the factual history of this case, please see the
trial court opinion pursuant to Pennsylvania Rule of Appellate Procedure
1925(a) filed on direct appeal. See Trial Court Opinion, filed June 1, 2012, at
2-12.
J-S07019-19



        On February 29, 2012, a jury found Marrero-Monge guilty of first-degree

murder, firearms not to be carried without a license, simple assault, and

criminal conspiracy.2 The trial court sentenced Marrero-Monge to life

imprisonment on the murder conviction.3 Marrero-Monge filed a Notice of

Appeal, and this court affirmed the judgment of sentence on February 22,

2013. Relevant to this appeal, we concluded that the trial court did not err in

finding the photo array shown to Williams was not unduly suggestive.

Commonwealth v. Marrero-Monge, Memorandum, No. 625 MDA 2012, at

16 (Pa.Super. filed Feb. 22, 2013) (“Direct Appeal Memorandum”). On direct

appeal, Marrero-Monge referenced Williams’ testimony that he believed he

informed the officers that the shooter had an eyebrow piercing. Appellant’s

Br., Commonwealth v. Marrero-Monge, No. 625 MDA 2012, at 12-13

(Pa.Super. filed Sept. 17, 2012). The trial court, however, credited the

testimony of the detective, who stated Williams’ initial statement to the police

did not mention a piercing. Trial Court Opinion, filed June 1, 2012, at 6-7 n.15.

We concluded that Williams did not inform the detective of the eyebrow

piercing, and stated that “[t]he Commonwealth can hardly be faulted for not

including other individuals with piercings when Williams never mentioned

[Marrero-Monge’s] piercing to the detective.” Direct Appeal Memorandum at

16. We further concluded that Williams had an independent basis for his

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2   18 Pa.C.S.A. §§ 2502(a), 6106, 2701(a)(3), and 903, respectively.

3   The trial court imposed concurrent sentences for the remaining convictions.

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identification of Marrero-Monge and therefore, even if the out-of-court

statement was tainted, Williams’ in-court identification still was admissible.

Id. at 16-17

        Marrero-Monge filed a pro se PCRA petition seeking reinstatement of his

right to file a petition for allowance of appeal with the Pennsylvania Supreme

Court, which the PCRA court granted. He filed a petition for allowance of

appeal, which the Supreme Court denied on December 10, 2014.

        On March 3, 2016, Marrero-Monge filed a pro se PCRA petition, claiming

counsel was ineffective for failing to allege a Brady4 violation during trial and

failing to object to inconsistent statements made by Corporal Mark Garrett;

Williams would recant his testimony identifying Marrero-Monge; and the

Commonwealth violated Brady when it withheld information that the state

police had the alleged murder weapon in its possession. The PCRA court

appointed counsel, who filed a Turner/Finley5 letter and a petition to

withdraw as counsel.

        On January 22, 2018, the PCRA court granted counsel’s petition to

withdraw and issued notice of its intent to dismiss the PCRA petition without

a hearing. The court found that although the petition was timely, the issues

raised lacked merit. On February 8, 2018, Marrero-Monge filed a pro se

document, noting the court’s notice of intent to dismiss and its grant of the
____________________________________________


4   Brady v. Maryland, 373 U.S. 83 (1963).

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),                           and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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petition to withdraw, and requesting that the court appoint counsel to assist

in filing a response. On February 21, 2018, the PCRA court denied Marrero-

Monge’s request for the appointment of counsel and dismissed the petition.

Marrero-Monge filed a notice of appeal.

        Marrero-Monge raises the following issue on appeal: “Whether the PCRA

court erred as a matter of law and/or abused its discretion in dismissing

[Marrero-Monge’s] PCRA [petition] without a hearing where [Marrero-Monge]

was not properly served with the PCRA court’s pre-dismissal notice of intent

to dismiss as required by Pa.R.Crim.P. 907?” Marrero-Monge’s Br. at 4.

        Marrero-Monge claims the PCRA court sent its notice of intent to dismiss

to a “Lemuel Marrero-Monge other than Appellant, bearing the wrong inmate

number, and at the wrong state correctional institution.” Id. at 14. Marrero-

Monge claims his inmate number is not the inmate number listed on the

mailing and that he is incarcerated at SCI Huntington, not SCI Greene, as

listed on the mailing. He claims he did not receive the court’s notice until

February 16, 2018, when the PCRA counsel forwarded him a copy of the order

and informed him that counsel had been granted permission to withdraw. Id.

        Marrero-Monge is not entitled to relief. He filed with the PCRA court a

request for appointment of counsel for assistance in filing a response to the

court’s notice of intent to dismiss. This document was dated “Thursday, 8,

2018”6 and docketed on February 15, 2018. Marrero-Monge did not file a pro

____________________________________________


6   February 8, 2018 was a Thursday.

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se response and did not seek an extension of time to do so. The court

considered the request for appointment of counsel prior to ruling on the PCRA

petition. Even if the court sent the notice of intent to dismiss to the incorrect

address, Marrero-Monge still became aware of the notice at least as early as

February 8, 2018, and could have responded to the notice with any reasons

that he believed entitled him to relief.

      Although not included in his questions presented, in his brief, Marrero-

Monge alleges that he had meritorious claims that entitled him to PCRA relief:

Williams testified at the preliminary hearing that he informed the officers of

the eyebrow piercing and, therefore, the opinion of this Court on direct appeal

was based on a faulty premise; the Commonwealth failed to disclose that

Marrero-Monge’s father admitted that it was he, not Marrero-Monge, who shot

the victim; and the Commonwealth failed to disclose that Williams had been

convicted of various crimes, including false identification to law enforcement

officers.

      Marrero-Monge has waived these claims, as they were not raised in his

pro se petition, not mentioned in his counsel’s Turner/Finley letter, and not

raised in a response to the court’s notice of intent to dismiss. See Pa.R.A.P.

302(a) (providing “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal”); Commonwealth v. Smith,

121 A.3d 1049, 1054 (Pa.Super. 2015) (finding claims waived where not

raised in response to Rule 907 notice).




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      Further, even if he had not waived the claims, we would conclude they

lacked merit.

      Marrero-Monge first claims his counsel was ineffective on direct appeal

because, contrary to what this Court stated, Williams testified that he

informed the detective that the shooter had an eyebrow piercing. This claim

lacks merit. Marrero-Monge’s appellate counsel argued on direct appeal that

the trial court erred in denying the motion to suppress Williams’ identification

of Marrero-Monge, noting that Williams testified he informed the officers that

the shooter had an eyebrow piercing. Counsel cannot be found ineffective for

failing to argue something that counsel did, in fact, argue. Further, this Court

noted that the trial court credited the testimony of the detective, who testified

that Williams’ initial description of the shooter did not include that the shooter

had an eyebrow piercing. In addition, we concluded that, even if this was

error, Williams’ in-court identification would have been admissible because

Williams’ had an independent basis for his identification. Therefore, Marrero-

Monge’s claim that his trial counsel was ineffective regarding the appellate

claim as to Williams’ pre-trial identification lacks merit.

      Marrero-Monge next claims the Commonwealth failed to disclose

exculpatory evidence consisting of a statement made by Marrero-Monge’s

father admitting that the father shot and killed the victim and Williams’ prior

convictions for false identification to law enforcement and tampering with

physical evidence.




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       Under Brady, the Commonwealth’s “failure to divulge exculpatory

evidence is a violation of a defendant’s Fourteenth Amendment due process

rights.” Commonwealth v. Ly, 980 A.2d 61, 75 (Pa. 2009). “[T]o establish

a Brady violation, a defendant is required to demonstrate that exculpatory or

impeaching evidence, favorable to the defense, was suppressed by the

prosecution, to the prejudice of the defendant.” Id. (quoting Commonwealth

v. Gibson, 951 A.2d 1110, 1126 (Pa. 2008)). Further, “Brady evidence may

not be cumulative of other evidence, cannot have been equally available to

the defense, and cannot have been discoverable through the exercise of

reasonable diligence.” Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa.

2013) (citations omitted). Where a petitioner raises a Brady claim in a PCRA

petition, he or she must demonstrate that the alleged Brady violation “so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Ly, 980 A.2d at 76.

       Marrero-Monge first claims the Commonwealth failed to disclose that his

father told the police that he, not Marrero-Monge, shot the victim. There is no

evidence that such a statement exists. In fact, on direct appeal, Marrero-

Monge claimed that his father’s statement implicated Marrero-Monge in the

shooting.7 Further, if such a statement did exist, it would have been equally

____________________________________________


7 On direct appeal, Marrero-Monge claimed that the trial court erred in
admitting his father’s statement because the statement implicated him. This
Court concluded the claim lacked merit, noting: “Lemuel Marrero, Sr. was
granted immunity but refused to testify, and was held in contempt of court.



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available to the defense or discoverable with reasonable diligence, as the

alleged witness was Marrero-Monge’s father, and the father refused to testify

for the Commonwealth at trial.

       Marrero-Monge next claims the Commonwealth failed to disclose that

Williams had prior convictions. Again, there is no evidence in the record of

such convictions. Further, if such convictions did exist, they were discoverable

by the exercise of due diligence and therefore not Brady evidence. See

Simpson, 66 A.3d at 264.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/04/2019




____________________________________________


No statement from Lemuel Marrero, Sr. was ever introduced at [Marrero-
Monge’s] trial.” Direct Appeal Memorandum at 21 (citations to record
omitted).

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