J-S53037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JESUS ADAMES

                             Appellant                No. 2006 MDA 2015


                 Appeal from the PCRA Order October 27, 2015
        in the Court of Common Pleas of Berks County Criminal Division
                       at No(s): CP-06-CR-0001617-2004

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 24, 2017

        Appellant, Jesus Adames, appeals pro se from the order denying his

first petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. Appellant claims the PCRA court erred in rejecting

his claim that Pennsylvania lost jurisdiction to enforce its sentence and his

numerous allegations of ineffective assistance of counsel. We affirm.

        The pertinent facts and procedural history have been summarized as

follows:

              On July 1, 2000, Appellant and his co-defendants, Craig
           Ryan Hines, Carlos Holguin, and Christopher Ferreil, riding
           in a white van, pulled up next to a vehicle occupied by
           Felix Cruz and the victim, Lowell Nicholas.            Five
           [eyewitnesses] to the scene heard [gunshots] and saw
           glass breaking between the two vehicles. One witness saw
           gunfire exchanged between the two vehicles. Appellant


*
    Former Justice specially assigned to the Superior Court.
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        and his co-defendants were identified as the occupants of
        the white van.

            Jesse Vargaas rented the white van at the request of
        co-defendant Holguin with money Holguin provided him.
        Ten days after the shooting, the van was taken into a
        repair shop to have the windows replaced. An employee
        fixing the van found a bullet slug in the base of the van’s
        windshield and an empty bullet shell casing on the floor
        behind the driver’s seat. These items were turned over to
        the police.

           Commonwealth witness Angel Rivera testified that he
        was at Appellant’s residence the day after the shooting and
        that Appellant told him he had fired a gun into a car the
        night before while using his left hand. This was significant
        because Appellant’s right arm was in a cast at the time of
        this statement. Additionally, Jason Frank Borelli testified
        that Appellant told him that he shot the victim because he
        owed him money for drugs.

           Appellant filed a motion to sever his trial from that of
        his co-defendants on June 23, 2004. The motion was
        denied. A jury trial commenced on May 2, 2005, and, on
        May 20, 2005, the jury found Appellant guilty of two
        counts of aggravated assault, firearms not to be carried
        without a license, possession of an instrument of crime,
        and two counts of recklessly endangering another person.
        [Appellant was acquitted of first and third-degree murder.]
        An aggregate term of incarceration of thirteen to twenty-
        eight years was imposed on July 20, 2005. On August 18,
        2005, Appellant filed a timely notice of appeal.

Commonwealth v. Adames, 1544 MDA 2005 at 1-2 (Pa. Super. Oct. 31,

2006) (unpublished memorandum).

     Finding no merit to his claims, we affirmed Appellant’s judgment of

sentence on October 31, 2006. Id. On June 5, 2007, our Supreme Court

denied Appellant’s petition for allowance of appeal.    Commonwealth v.

Adames, 926 A.2d 972 (Pa. 2007).



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       Appellant filed a pro se PCRA petition on July 19, 2008, and the PCRA

court appointed counsel.       Ultimately, Appellant requested the right to

represent himself.     Following a Grazier1 hearing, the PCRA court granted

Appellant’s request to proceed pro se, and Appellant filed an amended

petition on January 30, 2014. The PCRA court held an evidentiary hearing

on June 11, 2015. Although Appellant was given the opportunity to present

evidence in support of his claims, he did not do so, but rather, rested on the

“four corners” of his amended petition. On August 3, 2015, the PCRA court

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

petition.   Appellant filed a timely response. By order entered October 27,

2015, the PCRA court dismissed Appellant’s amended PCRA petition.         This

timely appeal follows.    Both Appellant and the PCRA court have complied

with Pa.R.A.P. 1925.

       Appellant raises a single issue of whether the PCRA court “abused its

discretion when it denied the [amended PCRA petition.]” Appellant’s Brief at

2. In support of this issue, he then raises a jurisdictional argument, as well

as the following twelve claims of ineffectiveness of trial counsel:

             Trial counsel gave an alibi witness notice but then failed
             to call the alibi witness to testify.

             Ineffective assistance of counsel for failing to call
             Nelson Rodriguez, Melissa Dierdorf and Mamadu Sarr as
             witnesses for the defense.


1
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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          Counsel was ineffective for not having a DNA expert for
          the defense who could have testified that the DNA
          samples were unreliable for DNA testing because of Ms.
          Houtz’s handling of the blood samples and the storage
          of the blood samples.

          Trial counsel was ineffective for not         retaining   a
          firearms/ballistics expert for the defense.

          Trial counsel was ineffective for failing to solicit and
          obtain an expert witness for the defense of concerning
          the misidentification of Appellant.

          Trial counsel was ineffective for failing to ask the court
          to instruct the jury that mere presence at the scene of
          the crime is not sufficient to convict Appellant of any
          crimes.

          Ineffective assistance of counsel for failing to raise a
          state speedy trial Rule 600 violation, as well as a
          federal speedy trial right violation, as per Barker v.
          Wingo, 407 U.S. 514 (1972).

          Trial counsel was ineffective for not challenging and
          then preserving Appellant’s confrontation clause right to
          examine the serology expert (Ms. Houtz) concerning her
          examination of the carpet and the blood on the carpet
          and how she prepared the blood for DNA testing.

          Trial counsel was ineffective for not conducting any
          meaningful investigation of the crime scene and failed
          to even attempt to interview any of the co-defendants
          concerning the actual innocence of Appellant.

          Trial counsel was ineffective for waiving Appellant’s
          right to testify at his trial.

          Trial counsel was ineffective for failing to raise a double
          jeopardy claim prior to the start of Appellant’s trial.

          Trial counsel was ineffective for failing to challenge the
          weight and the sufficiency of the evidence after the
          Commonwealth rested its case and for failing to make a
          motion for mistrial.




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See Appellant’s Brief at 7-28.2

        Our standard of review of the denial of a PCRA petition is limited to

examining whether the PCRA court’s rulings are supported by the evidence

of record and free of legal error. Commonwealth v. Volk, 138 A.3d 659,

661 (Pa. Super. 2016).       “The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citation

and quotation marks omitted).

        Appellant first argues that the Pennsylvania courts lost jurisdiction

over him once he was erroneously transferred to begin a federal sentence.

The PCRA court described the factual background of Appellant’s claim as

follows:

              At the time of sentencing [in this case], Appellant had
           either been resentenced or was awaiting re-sentencing for
           parole violations in two, unrelated Berks County cases
           (Dockets 0981-94 and 1404-94).            At the time of
           Appellant’s June 11, 2015 PCRA hearing in the present
           matter he was still serving his sentences on those dockets,
           and had not yet begun to serve the sentence imposed in
           this case. Appellant has also been transferred to federal
           custody relating to Case No. 2:04CR678-01 in 2007,
           apparently “in error”, while he was serving these two
           sentences. This court is unaware whether Appellant has
           yet to begin serving the sentence imposed in the present
           docket, which was imposed July 19, 2005.

Statement in Lieu of Mem. Op., 1/11/16, at 1 n.1.


2
    We have reordered Appellant’s issues for ease of discussion.




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        Our review of the record reveals no basis to the PCRA court’s

conclusion that Appellant has not begun serving the sentence imposed in

this case.    Rather, because Appellant is still serving sentences for parole

violations at dockets 081-94 and 1404-94, any claim that his erroneous

transfer to federal prison divested the PCRA court of jurisdiction is more

appropriately raised at those prior dockets. To the extent he claims that the

Pennsylvania Department of Corrections erred in computing his sentences,

Appellant’s sole avenue of relief is an original action in Commonwealth

Court. See generally, Commonwealth v. Heredia, 97 A.3d 392, 394-95

(Pa. Super. 2014) (reiterating that “a PCRA petition is not the proper method

for contesting the DOC's calculation of sentence.”).

        Appellant’s remaining twelve arguments raise claims of trial counsel’s

ineffectiveness. 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



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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.    In assessing a claim of

ineffectiveness, when it is clear that appellant has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).                 Counsel

cannot be deemed 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). It is petitioner’s burden to produce

counsel at an evidentiary hearing in order to meet his burden of proof that

his claims warrant relief.   Commonwealth v. Jones, 596 A.2d 885, 888

(Pa. Super. 1991).

      Appellant’s first five claims of trial counsel involve the failure to call a

witness at his trial. In order to establish that trial counsel was ineffective for

failing to investigate and/or call a witness at trial, a PCRA petitioner must

demonstrate that:

         (1) the witness existed; (2) the witness was available to
         testify for the defense; (3) [trial] counsel knew of, or
         should have known of, the existence of the witness; (4)
         the witness was willing to testify for the defense; and (5)
         the absence of the testimony of the witness was so
         prejudicial as to have denied [the appellant] a fair trial.

Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).


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      Because     Appellant   failed   to   proffer   any   evidence   of   counsel’s

ineffectiveness at the PCRA hearing, he has failed to establish any of the

Thomas factors or demonstrate that counsel’s alleged ineffectiveness “so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.”           Johnson, 966 A.2d at 532.

Thus, Appellant’s first five claims of ineffectiveness fail.

      Appellant’s remaining ineffectiveness claims fail for the same reason.

Claims of ineffectiveness are not self-proving.        A PCRA petitioner claiming

ineffective assistance of counsel must allege sufficient facts from which a

court can determine counsel’s effectiveness.            See Commonwealth v.

Pettus, 424 A.2d 1332, 1335 (Pa. 1981). Appellant failed to present any

evidence at the PCRA hearing, which renders him unable to sustain his

burden under the tripartite test for ineffective assistance claims.              See

Johnson, 966 A.2d at 532; Jones, 596 A.2d at 888. In his pro se brief,

Appellant does no more than list his claims of ineffectiveness regarding

counsel with bare assertions to support them. Thus, we discern no basis to

conclude that Appellant sustained his burden of proving trial counsel’s

ineffectiveness at an evidentiary hearing or that the PCRA court erred in

denying relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




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