J-S21010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

RAFAEL GARCIA,

                          Appellant                  No. 3569 EDA 2013


                 Appeal from the PCRA Order December 12, 2013
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0804021-2005, CP-51-CR-0804041-
           2005, CP-51-CR-0804051-2005, CP-51-CR-0807401-2005


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 10, 2015

        Rafael Garcia appeals pro se from the December 12, 2013 order

denying him PCRA relief at four different criminal action numbers.         We

affirm.

        Appellant, Carlos Garcia (“Carlos”), and Luis DeJesus operated a

residential burglary ring in Northeast Philadelphia from 2001 to 2004. Gene

McFadden was recruited into the criminal enterprise in August 2004, and the

co-conspirators started to burglarize commercial properties, including a

federal post office. As to the home burglaries:

            Typically, one of the conspirators would knock on the front
        door of a home; if no one answered, another would become a
        lookout while the others entered the home.         They broke
        windows, smashed doors and disabled alarm systems by
        disconnecting electric and phone lines. [Appellant, Carlos, and
        DeJesus] stole jewelry, cash, cable boxes and other electronics.
        They stole DVD players, guns, laptops and collectibles. The

*
    Retired Senior Judge assigned to the Superior Court.
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      stolen goods were put into duffel bags, suitcases and pillow
      cases found inside the burglarized property. The contraband was
      then stashed at a house belonging to [Appellant’s] sister, Jocelyn
      Garcia.   This residence, located at 6119 Edmund Street in
      Philadelphia, served as de facto headquarters for the ring.

Trial Court Opinion, 9/22/14, at 1-2.

      While the burglary ring was operating, Appellant had a room at

Jocelyn’s home on 6119 Edmund Street, where Carlos and DeJesus also

lived intermittently.   Jocelyn testified that Appellant locked his room.

Appellant also had a separate residence in an apartment located on 2100

Tremont Street, Philadelphia.

      Police cracked the perpetrators of the string of burglaries through the

help of William Linehauser. As noted, until August 2004, Appellant, Carlos,

and DeJesus targeted homes.       That month, they asked McFadden to help

them expand their burglary activities to commercial and governmental

properties. McFadden was knowledgeable about how to successfully break

into those establishments.       McFadden planned and helped execute a

burglary that transpired on August 22, 2004 at Wissinoming Post Office

located at 5916 Torresdale Avenue. McFadden recruited Linehauser to help

in the burglary.   During that crime, Appellant, Carlos, DeJesus, McFadden

and Linehauser stole an electric stamp meter, $350, and a postal money

order worth $100. Police arrested Linehauser on August 30, 2004, after he

cashed that money order.        Linehauser admitted that he helped with the

August 22, 2004 crime, and he agreed to wear a recording device.



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   In discussions occurring between September 28, 2004, and October 5,

2004, Appellant was taped planning a burglary at Tacony Beer Distributor

located at 7829 Torresdale Avenue, with Carlos, DeJesus, McFadden, and

Linehauser. After the other criminals became suspicious of Linehauser, he

ceased wearing the recording device. On October 20, 2004, McFadden sold

Linehauser some tools using pre-recorded money from the Philadelphia

police. Those tools were then connected to a previously-reported residential

burglary, and the owner of the tools, John Ferry, identified them as his

stolen property.

   On October 25, 2004, Appellant, Carlos, and McFadden burglarized the

Tacony Beer Distributor but did not ask for Linehauser’s assistance with this

crime. They stole an ATM machine, cigarettes, between $5,000 and $6,000

in cash, and reams of scratch-off lottery tickets.       Carlos’ girlfriend, Tania

Eckert, testified that during the night of October 25, 2004, she observed

Carlos and McFadden carrying a large object and Appellant carrying a box of

lottery tickets into 6119 Edmund Street. She later observed Appellant and

his cohorts pry open an ATM with a screwdriver and crowbar.

   After the burglary at Tacony Beer Distributor, police secured search

warrants for 6119 Edmund Street, Appellant’s Tremont Street apartment,

and cars owned by Appellant and Eckert.            The search warrants were

premised   upon    information   obtained   from   the    recordings   made    by

Linehauser.   At 6119 Edmund Street, police discovered the ATM stolen on


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October 25, 2004, together with lottery tickets, artwork, large amounts of

jewelry and electronics, and drivers’ licenses and credit cards belonging to

burglary victims.      At the Edmund Street location, police also found safes

stolen during a September 14, 2004 burglary of Yordy’s Deli, which was

located at Torresdale Avenue.      The safes contained $10,000 in cash when

taken.

       Appellant’s Edmund Street bedroom “was packed from floor to ceiling

with stolen goods; some of the items even had the original owner’s name on

them.”     Id. at 4.   Ironically, one of the Philadelphia police detectives who

participated in the execution of the search warrant found items stolen during

a burglary of her home.         Police also found stolen goods in Appellant’s

apartment at 2100 Tremont Street. Victims of the burglaries were able to

identify items as stolen from their homes or businesses. The items seized

from 6119 Edmund Street and Appellant’s Tremont Street apartment

implicated Appellant in the commission of thirty-seven burglaries.

   On October 26, 2004, police stopped Eckert while she was driving her

car.    Carlos was her passenger, and police recovered in Eckert’s vehicle a

bag containing drivers’ licenses and materials belonging to various burglary

victims.    Eckert and Carlos were arrested and agreed to cooperate with

police. Carlos told police that he and Appellant had committed more than

thirty burglaries since 2001, and he drove around pointing out some of their

targets.


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   On October 28, 2004, Appellant was arrested outside 2100 Tremont

Street.    After   waiving   his   Miranda   rights,   Appellant   confessed   to

participating in the September 14, 2004 burglary of Yordy’s Deli and the

October 25, 2004 burglary of Tacony Beer Distributor. He also admitted to

committing six reported residential burglaries in Northeast Philadelphia.

After executing a written confession, Appellant rode with a police detective

and identified properties that he and his accomplices had burglarized.

   Four criminal actions were filed against Appellant charging him with a

myriad of crimes.      Appellant filed a pre-trial motion to suppress his

confession and claimed that he told his arresting officers to call his lawyer,

Ronald Abel.   The police officers involved in Appellant’s apprehension and

questioning denied that Appellant invoked his right to counsel. The motion

to suppress was denied.

   The matter proceeded to a jury trial, where, on March 7, 2006, Appellant

was convicted of thirty-seven counts each of burglary and receiving stolen

property and one count each of corrupt organizations and conspiracy.           On

May 23, 2006, Appellant, who had a prior record score of three, was

sentenced to thirty-five to seventy years imprisonment.        We affirmed on

direct appeal, Commonwealth v. Garcia, 976 A.2d 1202 (Pa.Super. 2009)

(unpublished memorandum), and allowance of appeal was denied on

October 27, 2009. Commonwealth v. Garcia, 982 A.2d 1227 (Pa. 2009).




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     Appellant filed a timely pro se PCRA petition on April 19, 2010, counsel

was appointed, and counsel filed an amended PCRA petition as well as three

supplemental PCRA petitions.          After the PCRA court issued a Pa.R.Crim.P.

907 notice of its intent to deny the pending petitions without a hearing,

counsel moved to withdraw. Appellant then responded to the Pa.R.Crim.P.

907 notice and raised allegations of PCRA counsel’s ineffectiveness.

Appellant’s request for PCRA relief was denied on December 12, 2013, and

PCRA counsel filed the present appeal.           PCRA counsel then asked for a

remand of this matter as Appellant had expressed a desire to represent

himself.    We remanded and retained jurisdiction, and the court conducted

the requisite colloquy pursuant to Commonwealth v Grazier, 713 A.2d 81

(Pa. 1998). The PCRA court then allowed Appellant to proceed pro se.

      Appellant’s brief, which is seventy pages in length and does not contain

the certification required by Pa.R.A.P. 2135,1 contains the following issues:


____________________________________________


1
    That rule states:

        (1) A principal brief shall not exceed 14,000 words and a reply
        brief shall not exceed 7,000 words, except as stated in
        subparagraphs (a)(2)-(4). A party shall file a certificate of
        compliance with the word count limit if the principal brief is
        longer than 30 pages or the reply brief is longer than 15 pages
        when prepared on a word processor or typewriter.

Pa.R.A.P. 2135(1).




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     I. Was trial counsel ineffective in failing to call Melinda Lugo and
     Ron Able, Esq. at the suppression hearing, and did the PCRA
     court erred [sic] in concluding that this issue was harmless error
     and did not warrant evidentiary hearing?

     II. Was trial counsel ineffective in failing to file post-sentence
     motion challenging discretionary aspect of Appellant's sentence,
     and did PCRA court erred [sic] in concluding that this issue was
     waived & did not warrant evidentiary hearing?

     III. Was appellate counsel ineffective in failing to raise preserved
     issue of the trial court's refusal to give accomplice charge to jury
     regarding Tania Eckert, and did PCRA court erred [sic] in
     concluding that the charge was not supported by record and
     harmless error?

     IV. Was PCRA counsel ineffective in failing to raise appellant's
     originally filed pro-se claim of trial counsel's ineffectiveness re:
     failure to object and raise in post-verdict motion issues of
     multiple prosecutorial misconducts, and did the PCRA court erred
     [sic] in concluding that PCRA counsel had reasonable basis not to
     raise this issue because misconducts were harmless error?

     V. Was PCRA counsel ineffective in failing to raise Appellant's
     originally filed pro-se claim of trial counsel's ineffectiveness re:
     failure to object and request factual element be included in
     inadequate instructions for conspiracy with multiple criminal
     objectives, and did the PCRA court erred [sic] in concluding that
     this issue had been previously litigated?

     VI. Was PCRA counsel ineffective in failing to raise Appellant's
     originally filed pro-se claim of trial counsel's ineffectiveness re:
     failure to memorialize and declare the contents of Yamelyn
     Lugo's testimony at the suppression hearing, and did PCRA court
     erred [sic] in concluding that this issue was waived?

     VII. Was PCRA counsel ineffective in failing to raise Appellant's
     originally filed claim of trial counsel's overall deficient
     performance in cumulation [sic], and did the PCRA court erred
     [sic] in concluding that this issue was meritless?


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Appellant’s brief at 4-5.

      Initially, we outline the applicable principles regarding our review of

the PCRA court’s determinations herein:

           An appellate court reviews the PCRA court's findings of fact to
      determine whether they are supported by the record, and reviews
      its conclusions of law to determine whether they are free from
      legal error. The scope of review is limited to the findings of the
      PCRA court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super. 2014)

(citation omitted).

      Appellant’s     averments   pertain   to     allegations   that   he   received

ineffective assistance from prior counsel. Appellant bears a heavy burden in

this respect since counsel “is presumed effective, and to rebut that

presumption,    the    PCRA   petitioner    must     demonstrate    that     counsel's

performance was deficient and that such deficiency prejudiced him.”               Id.

(citation omitted).      There is a three-part test for proving counsel’s

ineffectiveness:

             To establish trial counsel's ineffectiveness, a petitioner
      must demonstrate: (1) the underlying claim has arguable merit;
      (2) counsel had no reasonable basis for the course of action or
      inaction chosen; and (3) counsel's action or inaction prejudiced
      the petitioner. See Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v.
      Pierce, 515 Pa. 153, 527 A.2d 973 (1987).




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Id. (citation omitted).   “Counsel's assistance is deemed constitutionally

effective once this Court determines that the defendant has not established

any one of the prongs of the ineffectiveness test.” Id. (citation omitted;

emphasis in original).

      We have carefully reviewed the applicable facts and law and the

allegations in the brief. We affirm the denial of PCRA relief on the basis of

the comprehensive assessment of Appellant’s claims outlined in the

September 22, 2014 opinion authored by the Honorable Ramy I. Djerassi.

We note that, to the extent that Judge Djerassi considered any issue waived

or previously litigated, he also proceeded to address the issue on the merits.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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