J-S26035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ROGEL I. SUERO                            :
                                           :
                    Appellant              :   No. 2568 EDA 2017

                 Appeal from the PCRA Order July 24, 2017
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0001552-2013


BEFORE:    BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED AUGUST 22, 2018

      Appellant, Rogel I. Suero, appeals from the order entered in the Court

of Common Pleas of Northampton County dismissing his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9545. We affirm.

      This Court has previously set forth the underlying facts and procedural

history attendant to Appellant’s trial as follows:

      On January 15, 2012, Suero, his co-defendant Rebecca Johnson,
      and two other individuals conspired to rob Johnson's
      grandmother, Carrie Smith. Ms. Smith suffered from preexisting
      medical conditions of the heart and lungs, including coronary
      artery disease, atrial fibrillation, and interstitial lung disease.
      Notes of Testimony (“N.T.”), 10/2/2013, at 107. In the early
      morning hours of January 15, 2012, Suero and an unknown
      individual entered Ms. Smith's residence. Ms. Smith called 911
      and told the police officers who responded that she was awoken
      by two males entering her bedroom. N.T., 10/1/2013, at 11. Ms.
      Smith stated that one man wore a dark, hooded sweatshirt and
      that the other had blue surgical gloves on his hands. Id. at 12.

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S26035-18


     The man wearing the sweatshirt told her to remain quiet, and he
     placed a pillow over her face. When he removed the pillow, he
     told Ms. Smith that she would not be harmed if she cooperated.

     Ms. Smith reported that the man in the sweatshirt demanded to
     know the location of her safe, and that the other man searched
     through her dressers while she led the first man to her safe. Id.
     at 13. When she struggled to remember the safe's combination,
     the man threatened her, and Ms. Smith felt a cold, hard object
     against the back of her head, which she believed to be a firearm.
     Id. at 14. After she opened the safe, Ms. Smith remembered
     seeing the individual wearing the blue surgical gloves reaching
     into the safe and removing her belongings. The men took
     approximately $35,000.00 cash from the safe. After removing the
     contents of the safe, the men took Ms. Smith back to her bedroom,
     then fled from the residence.

     Ms. Smith suffered a heart attack during or shortly after the
     robbery, and she was hospitalized several times over the
     subsequent weeks. On March 16, 2012, Ms. Smith died of
     exacerbation of congestive heart failure as a result of the heart
     attack suffered on January 15, 2012. N.T., 10/2/2013, at 131.

     The Commonwealth's theory of the case was that Suero and
     Rebecca Johnson conspired to commit the robbery because they
     planned to travel to Colorado to purchase a large amount of
     marijuana, and that they needed a substantial sum of money to
     accomplish that goal. Brief for Commonwealth at 25. At trial, the
     Commonwealth called Steven Wilson as a witness, who testified
     that Suero and Johnson had attempted to solicit his aid in a
     marijuana distribution scheme. N.T., 10/1/2013, at 204. Mr.
     Wilson testified that the quantity of marijuana that Suero and
     Johnson sought to acquire would have a value of approximately
     $400,000.00. Id. at 210. The Commonwealth introduced this
     evidence to demonstrate the defendants' motive for the robbery,
     as it was “evidence tending to show that [Suero] and his co-
     defendant were in need of obtaining a substantial sum of money
     to make their marijuana purchase.” Brief for Commonwealth at
     25.

     Prior to trial, Suero moved to exclude Mr. Wilson's testimony as
     inadmissible evidence of prior bad acts pursuant to Pa.R.E.
     404(b)(1). The trial court denied Suero's motion, finding that the
     evidence was relevant to motive and that the probative value of

                                   -2-
J-S26035-18


      Wilson's testimony outweighed any prejudice to Suero. Suero also
      moved to exclude evidence of certain prison phone calls, during
      which Rebecca Johnson implicated Suero in the crimes. The trial
      court permitted the introduction of the calls, provided that the
      transcripts of the calls be redacted in a manner that would remove
      any reference to Suero.

      On September 30, 2013, Suero and Johnson proceeded to a joint
      trial, which lasted for six days. During closing arguments, the
      attorney for the Commonwealth made several statements that
      Suero alleged to be inflammatory. After closing arguments were
      completed, Suero objected to the statements and moved for a
      mistrial, arguing that the assistant district attorney, inter alia,
      misrepresented testimony, stated her personal beliefs about the
      credibility of witnesses, and improperly commented upon Suero's
      demeanor during the trial. The parties agreed on a number of
      curative instructions, and the trial court proceeded to instruct the
      jury accordingly. The jury returned a verdict that same day,
      finding Suero guilty of the above-listed charges. Suero's co-
      defendant, Rebecca Johnson, was also convicted of numerous
      offenses in connection with the incident, and was sentenced to a
      term of life imprisonment.

      On December 5, 2013, the trial court sentenced Suero to, inter
      alia, life imprisonment without the possibility of parole. On
      December 16, 2013, Suero filed post-sentence motions, which the
      trial court denied on March 24, 2014.

Commonwealth v. Suero, No. 1025 EDA 2014, unpublished memorandum

at *1–2 (Pa. Super. filed Feb. 23, 2015).

      Suero timely filed a notice of appeal, and he asserted, inter alia, that

the trial court erred when it neither granted Appellant’s motion for mistrial nor

declared a mistrial sua sponte for inflammatory prosecutorial remarks and

conduct at closing.   This Court deemed the first part to Appellant’s issue

waived, as counsel agreed to withdraw the motion for a mistrial in exchange

for a curative instruction.   Specifically, the instruction directed the jury to

disregard completely the prosecutor’s comments about what a prospective

                                      -3-
J-S26035-18



witness might have said and which witnesses were believable, as it was for

the jury, alone, to determine credibility. Moreover, after the court gave the

desired instructions, counsel failed to make a timely and specific objection

that the instruction inadequately addressed his concerns, we observed.

      Regardless of counsel’s withdrawal of the mistrial motion, Appellant

argued in the alternative, the court was obligated to sua sponte declare a

mistrial given the manifest necessity for one created by the prosecutor’s gross

misconduct.    This argument, we noted, “ignores a defendant’s role in

determining the best course of action in response to an allegedly prejudicial

event.” Id. at *5. Moreover, we concluded that Appellant still received a fair

trial notwithstanding any culpability of the prosecutor in mischaracterizing the

victim’s statements to investigators. Though perhaps not entirely accurate,

the characterizations were not designed to deprive Appellant a fair trial, did

not have the unavoidable effect of prejudicing the jury against Appellant, and

were addressed by the jury instructions.

      As for the prosecutor’s stated personal opinion about the credibility of

Appellant’s testimony, we determined that the court sufficiently mitigated the

influence of the statement by both reminding jurors they were the sole judges

of credibility and declaring as “immaterial” any attorney opinion regarding the

believability of a witness. Id. at *8. The instruction, we found, was clear and

particular, and the law presumes a jury follows such instructions. Accordingly,

we discerned no reversible error with the court’s failure to declare a mistrial

sua sponte.

                                     -4-
J-S26035-18



        Finding no merit to the remaining issues raised on direct appeal, we

affirmed judgment of sentence on February 23, 2015.           Appellant filed a

petition for allowance of appeal to the Pennsylvania Supreme Court, which

denied Appellant’s PAA on July 21, 2015.

        On March 25, 2016, Appellant filed his first PCRA petition. The PCRA

court appointed counsel, who filed an amended petition on June 13, 2016.

Appointed counsel informed the PCRA court, however, that Appellant desired

privately retained counsel instead, and, after a hearing on the matter, the

court granted Appellant’s request to retain new counsel. On October 6, 2016,

private counsel entered her appearance and requested both additional time to

file an amended petition and a continuance of a scheduled hearing on

Appellant’s petition, which the court granted.

        Counsel filed her amended petition on January 30, 2017, and the court

conducted an issue-framing conference on February 10, 2017.          A two-day

hearing on the issues raised in the amended petition commenced on May 8,

2017.        The court thereafter accepted party briefs, and on July 24, 2017,

entered an order and opinion dismissing Appellant’s petition as devoid of

merit. This timely appeal follows.

        Appellant presents the following questions for our consideration:

        I.      WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS
                COUNSEL FOR FAILING TO INVESTIGATE AND TO
                RETAIN EXPERTS TO CHALLENGE CAUSATION AT
                TRIAL AND DID THE PCRA COURT ABUSE ITS
                DISCRETION IN DETERMINING, FIRSTLY, THAT
                THERE WAS NO PREJUDICE BECAUSE OF A JURY’S


                                       -5-
J-S26035-18


            DETERMINATION IN ANOTHER CASE AND, SECONDLY,
            IN CREDITING TRIAL COUNSEL’S TESTIMONY THAT
            HE  CONSULTED   AN   EXPERT   TO  CHALLENGE
            CAUSATION?

      II.   WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS
            COUNSEL FOR FAILING TO CALL AN ALIBI WITNESS
            AT TRIAL AND DID THE TRIAL COURT ABUSE HER
            DISCRETION IN DETERMINING THAT LAUER WAS NOT
            AWARE OF THE WITNESS UNTIL AFTER TRIAL, THAT
            THE ALIBI WITNESS WAS NOT CREDIBLE, AND IN
            DETERMINING THAT THERE WAS A STRATEGIC
            REASON FOR NOT CALLING AN ALIBI WITNESS?


      III. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS
           COUNSEL FOR WITHDRAWING HIS REQUEST FOR A
           MISTRIAL FOLLOWING PREJUDICIAL STATEMENTS
           BY THE PROSECUTOR AND DID THE TRIAL COURT
           COMMIT LEGAL ERROR IN DETERMINING THAT THE
           ISSUE WAS PREVIOUSLY LITIGATED ON DIRECT
           APPEAL?


      IV.   WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS
            COUNSEL FOR FAILING TO OBJECT TO IMPROPER
            LEADING QUESTIONS BY THE PROSECUTOR?


      V.    WAS PETITIONER/APPELLANT ENTITLED TO RELIEF
            BECAUSE OF THE CUMULATIVE PREJUDICIAL EFFECT
            OF THE ERRORS IN THIS CASE?

Appellant’s brief at 4.

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

examining whether the evidence of record supports the court's determination

and whether its decision is free of legal error.   Commonwealth v. Conway,

14 A.3d 101 (Pa.Super. 2011).       This Court grants great deference to the

findings of the PCRA court if the record contains any support for those findings.



                                      -6-
J-S26035-18



Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007). The PCRA court's

credibility determinations, when supported by the record, are binding on this

Court; however, we apply a de novo standard of review to the PCRA court's

legal conclusions. Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).

       With respect to issues two through five, after careful review of the

record, the parties’ briefs, and the PCRA court’s opinion, we affirm on the basis

of the opinion by the Honorable Paula A. Roscioli. See PCRA Ct. Op. at 8-15

(concluding: (1) trial counsel was not ineffective for failing to call Mr. Sylvestre

as an alibi witness where counsel testified such an alleged alibi was not

brought to his attention during trial, and even if it had been, presenting alibi

would have allowed Commonwealth to introduce as rebuttal evidence

theretofore excluded evidence of Appellant’s cellular phone location data

putting him at the scene of the crime; (2) trial counsel was not ineffective for

withdrawing his request for mistrial on the basis of prosecutorial misconduct

stemming from the Commonwealth’s closing remarks;1 (3) counsel reasonably

elected against objecting to leading questions put to a medical expert as to

the medical cause of the victim’s death, as such evidence was irrelevant to

Appellant’s innocence defense; and (4) Appellant is not entitled to relief on his
____________________________________________


1  We agree with Appellant that our decision on direct appeal rejecting
Appellant’s claim of prosecutorial misconduct on the merits does not render
the present ineffective assistance claim “previously litigated” for purposes of
PCRA review, see Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005)
(deeming PCRA claims distinct from underlying substantive claims raised on
direct appeal). Nonetheless, under the present facts, we discern no arguable
merit to the present claim where counsel elected to withdraw his motion
regarding comments not rising to the level of misconduct.

                                           -7-
J-S26035-18



claim of cumulative prejudicial effect of trial counsel’s error, as counsel’s

actions were not erroneous but were, instead, based on reasonable

strategies).

      As for Appellant’s first issue asserting that counsel ineffectively failed to

retain a medical expert to challenge the Commonwealth’s theory pertaining to

the victim’s cause of death, we likewise adopt the trial court’s opinion rejecting

such claim, but we add to the discussion as follows.

      The      law   presumes   counsel   has   rendered   effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                 When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness of counsel will

cause the claim to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit....” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.” Taylor,




                                      -8-
J-S26035-18



supra at 1042 (quoting Commonwealth v. Poplawski, 852 A.2d 323, 327

(Pa.Super. 2004)).

             Once this threshold is met we apply the “reasonable basis”
      test to determine whether counsel's chosen course was designed
      to effectuate his client's interests. If we conclude that the
      particular course chosen by counsel had some reasonable basis,
      our inquiry ceases and counsel's assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

             Prejudice is established when [a defendant] demonstrates
      that counsel's chosen course of action had an adverse effect on
      the outcome of the proceedings. The defendant must show that
      there is a reasonable probability that, but for counsel's
      unprofessional errors, the result of the proceeding would have
      been different. A reasonable probability is a probability sufficient
      to undermine confidence in the outcome. In [Kimball, supra],
      we held that a “criminal defendant alleging prejudice must show
      that counsel's errors were so serious as to deprive the defendant
      of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(some internal citations and quotation marks omitted).

      “The petitioner bears the burden of proving all three prongs of the test.”

Id. “Where it is clear that a petitioner has failed to meet any of the three,

distinct prongs of the... test, the claim may be disposed of on that basis alone,

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

Commonwealth v. Basemore, 560 Pa. 258, 295, 744 A.2d 717, 738 n.23

(2000).

      Appellant posits the PCRA court abused its discretion when it concluded

trial counsel was not ineffective for failing to challenge the Commonwealth’s

evidence that Appellant’s actions on the night of the robbery caused Ms.


                                      -9-
J-S26035-18



Smith’s death two months later. According to Appellant, trial counsel’s case

file showed that he recognized causation was a critical issue but failed to

conduct an adequate pre-trial investigation into the issue.

      Alluding to counsel’s case file, Appellant avers that trial counsel

corresponded only once with a medical expert—Dr. John Shane, a forensic and

clinical pathologist, provided Dr. Shane with only Ms. Smith’s autopsy report,

and never received Dr. Shane’s opinion on causation. The PCRA court erred,

Appellant continues, by crediting trial counsel’s testimony that Dr. Shane did,

in fact, opine in a follow-up conversation with counsel that Ms. Smith’s heart

attack on the night of the robbery probably contributed to her death. The

record belied counsel’s testimony that such a conversation took place,

Appellant claims, because counsel’s otherwise “meticulous” case file includes

no notation of the purported follow-up conversation despite the great impact

it would have had on the defense.   See Appellant’s brief, at 35.

      Appellant also assails trial counsel’s failure to present to the jury the

threory, whether through cross-examination of the Commonwealth’s experts

or through direct examination of defense experts, that the robbery had no

effect on Ms. Smith’s pre-existing and progressively debilitating pulmonary

fibrosis, a condition which bore significantly on her cardiac health, Appellant

argues. On this point, Appellant refers to the PCRA testimonies of internist,

Edward D. Viner, M.D., and Cardiologist Arnold Meshkov, M.D., who each

pointed to Ms. Smith’s pulmonary fibrosis as the cause of her death.




                                    - 10 -
J-S26035-18



      At the PCRA hearing, Dr. Meshkov testified that Ms. Smith had suffered

“a very mild heart attack” during the robbery, but she recovered with no

consequential heart damage. N.T. 5/9/17, at 81-82. Moreover, Dr. Meshkov

disputed the radiologist’s impression of congestive heart failure made from

Ms. Smith’s chest x-rays taken on her admission two weeks after the heart

attack. Instead, the x-rays depicted the progression of pulmonary fibrosis,

the scar tissue from which is often mistaken for congestive heart failure-

related fluid in the lungs, Dr. Meshkov opined.     N.T. 5/9/17 at 83.    Dr.

Meshkov, therefore, testified that had counsel retained him prior to trial, he

would have opined to a reasonable degree of medical certainty that Ms.

Smith’s death was caused by pulmonary fibrosis and not the heart attack she

sustained during the robbery. N.T. at 5/9/17 at 88-89.

      Similarly, Dr. Viner testified that Ms. Smith’s idiopathic pulmonary

fibrosis evolved and progressed in a manner completely unaffected by the

trauma or emotions she experienced during the robbery. N.T. 5/9/17 at 114.

The shortness of breath Ms. Smith experienced two weeks after the robbery

was, therefore, in his opinion, a product of her pulmonary fibrosis and

unrelated to her fear and depression experienced after the robbery and heart

attack. N.T. at 120-123. Given the absence of the symptomology typically

associated with heart failure, Dr. Viner opined that Ms. Smith’s heart attack

of January 15, 2012, did not cause any damage to her heart. N.T. at 128. As

such, he concluded to a reasonable degree of medical certainty that Ms. Smith




                                    - 11 -
J-S26035-18



died from pulmonary fibrosis, and he confirmed he would have offered that

opinion at Appellant’s trial had counsel retained him. N.T. at 130-131.

      Given both the conflicting record as to whether counsel’s expert ever

opined on causation, and the availability of other experts who would have

denied causation, Appellant asserts the PCRA court erred when it concluded

counsel employed a reasonable trial strategy causing no prejudice to

Appellant.

      In response, the Commonwealth argues the record shows trial counsel

engaged in a reasonable investigation into the issue of causation. In counsel’s

49 years of practicing criminal law, he had retained Dr. Shane numerous times

for testimony regarding medical causation, the Commonwealth contends. See

Appellee’s brief, at 12 (citing N.T. 5/8/17 at 3, 15, and 50). Trial counsel was

quite specific in recounting Dr. Shane’s expert opinion, the Commonwealth

continues, that the Commonwealth could make “a very clear case that [the

robbery] was a very substantial contributing factor to [Ms. Smith’s] death.”

Id. (citing N.T. at 18). While Dr. Shane acknowledged a case could be made

for either side, counsel testified, the doctor nevertheless opined that the

medical evidence sufficed to prove the element of causation. Id. (citing N.T.

at 19). Trial counsel explained he, therefore, did not request a report from

Dr. Shane because that would have required him to produce what would have

been, at best, an unhelpful report, the Commonwealth notes. Id. (citing N.T.

at 19).




                                     - 12 -
J-S26035-18



         In light of Dr. Shane’s unfavorable communication to counsel, the

Commonwealth posits, it was a reasonable strategy for counsel to focus the

jury’s attention on Appellant’s assertion of innocence. See Appellant’s brief,

at 13.

         The Commonwealth also challenges the notion that Appellant suffered

prejudice from trial counsel’s chosen course. In so doing, the Commonwealth

relies on the PCRA court’s opinion that Appellant failed to demonstrate a

reasonable probability that the jury would have acquitted him of second-

degree murder had he actively investigated and advanced a causation

defense.

         In reaching this conclusion, the PCRA court took judicial notice of the

trial of Quadir Taylor, Appellant’s cohort in the robbery of Ms. Smith. Taylor

faced the same charges as Appellant, but unlike Appellant, Taylor admitted

his participation in the robbery and chose, instead, to defend against the

murder charge solely on the issue of causation. Taylor sought to advance his

defense through the medical expert testimonies of Drs. Meshkov and Viner,

who rendered the same opinions at Taylor’s trial as they did at Appellant’s

PCRA hearing.       Nevertheless, a jury convicted Taylor of second-degree

murder.

         The PCRA court, therefore, came to the following conclusion with respect

to Appellant’s prejudice claim:

         Given the outcome of the Taylor trial, we cannot conclude that
         there is a reasonable probability, had Attorney Lauer called Drs.
         Viner and Meshkov at [Appellant’s] trial, that the outcome of that

                                       - 13 -
J-S26035-18


      proceeding would have been different. While it is possible that a
      different jury may have reached a different conclusion when
      presented with the same causation evidence as that presented at
      the Taylor trial, we are not concerned with that which is in the
      realm of possibility, but with that which is reasonably probable.
      Accordingly, [Appellant] has failed to establish that he was
      prejudiced by trial counsel’s failure to more strenuously pursue a
      defense on the issue of causation, and his petition must fail. [See
      Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052
      (1984) (setting forth prejudice standard in ineffectiveness claim)].

PCRA Court Opinion, 7/24/17, at 6.

      Here, the PCRA court made a credibility determination in favor of trial

counsel and his assertion that he discussed the causation issue extensively

with Dr. Shane but obtained an unfavorable expert medical opinion from the

doctor that would not help the defense. Appellant asks us to undo the court’s

credibility determination because trial counsel did not document his discussion

with Dr. Shane in the case file as he had done with respect to other aspects

of the case. This purported inconsistency between counsel’s testimony and

his practice of documenting his work on the case undermines the reliability of

counsel’s testimony, Appellant maintains.

      We disagree that trial counsel was under an obligation to corroborate

his testimony with a case file entry memorializing his conversation with Dr.

Shane in order to maintain credibility on this point. Indeed, counsel explained

in a related context that he deliberately declined to ask Dr. Shane for a written

report documenting the doctor’s observations and impressions so he would

not be compelled to turn over the potentially damaging report. The PCRA

court was free to conclude that counsel similarly preferred to leave his



                                     - 14 -
J-S26035-18



discussion with Dr. Shane undocumented, as well, as it represented a dead-

end for the defense.

       Contrary to Appellant’s assertion, therefore, the record neither belies

counsel’s explanation for foregoing a more aggressive causation defense nor

demonstrates the unreasonableness of counsel’s strategic decision to

concentrate, instead, on an innocence defense. Under our standard of review,

as long as the chosen course had some reasonable basis designed to

effectuate the client’s interest, then our inquiry ceases.      Pierce, supra.

Accordingly, we discern no abuse of discretion in the PCRA court’s rejection of

Appellant’s first ineffectiveness claim.2

       Therefore, because we find no abuse of discretion or error of law with

the PCRA court’s order below, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/18




____________________________________________


2 Even if we addressed Appellant’s prejudice prong argument, which we need
not do having found counsel employed a reasonable strategy, we discern no
abuse of discretion reflected in the PCRA court’s rationale that Appellant failed
to show a reasonable probability that Dr. Meshkov’s and Dr. Viner’s
testimonies would have secured a favorable result for Appellant at trial.

                                          - 15 -
                                                                      Circulated 07/30/2018 10:26 AM




      IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
                 COMMONWEALTH OF PENNSYLVANIA
                        CRIMINAL DIVISION

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       This matter has come before the Court on Defendant Rogel Suero's

supplemental petition for post-conviction collateral relief, filed January 30, 2017,

pursuant to 42 Pa.C.S. § 9541 et seq. Upon careful review, we find that Defendant

is not entitled to relief.

I.     Factual and Procedural History

       Defendant Rogel Suero (Defendant) was convicted on October 7, 2013,

following a jury trial, of the crimes of second degree murder, aggravated assault,

robbery, conspiracy to commit robbery, burglary, conspiracy to commit burglary,

criminal trespass, theft by unlawful taking, possession of instruments of crime,

terroristic threats, and recklessly endangering another person, all arising from

the home invasion robbery and later death of Carrie Smith. Ms. Smith was the

grandmother of co-defendant Rebecca Johnson. Defendant and Ms. Johnson were

tried at a joint trial. Quadir Taylor was also a participant in the robbery, and was

ultimately convicted of related charges after a jury trial on January 13, 2017.



                                                                                                            �XHIBIT

                                                                                   j                    '5:
 David Bechtold, a then-juvenile defendant also involved in the robbery, entered

a guilty plea on related charges prior to the Suero/Johnson trial.

       On   December 5,     2013,   Defendant was sentenced       to   a   period   of

incarceration in a state correctional institution for the remainder of his life,

without the possibility of parole, on the charge of second-degree murder. He was

further sentenced to 60-120 months on the charge of aggravated assault, an

additional 48-96 months on the charge of conspiracy to robbery, and an additional

9-24 months on the charge of possession of instruments of crime. No further

penalty was imposed for the remaining charges, all of which merged for

sentencing purposes.

      Defendant filed post-sentence motions, all of which were denied by this

Court on March 24, 2014. On February 23, 2015, the Superior Court affirmed.

Defendant filed a petition for allowance of appeal to the Pennsylvania Supreme

Court, which was denied on July 21, 2015. On or about March 25, 2016,

Defendant filed a prose petition for collateral review pursuant to the Pennsylvania

Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Defendant was

appointed counsel and an issue framing conference was held on May 13, 2016.

Appointed counsel filed an amended petition on June 13, 2016. By way of

correspondence dated June 24, 2016, appointed counsel informed the Court that

Defendant wished to seek private counsel. A hearing was scheduled on

Defendant's PCRA petition for August 16, 2016, allowing Defendant time to retain

new counsel. On July 22, 2016, at Defendant's request, the hearing was continued

                                    Page 2 of 15
 to October 28, 2016. On October 6, 2016, present counsel entered her

 appearance, and requested both an opportunity to file an additional counselled

 petition and a continuance of the hearing. Counsel was granted an extension to

 December 31, 2016 to file an amended petition, and the hearing was continued

generally. On or about November 21, 2016, counsel requested a further extension

to January 31, 2017, which was granted. The instant petition was filed January

30, -2017. An issue-framing conference was held February 10, 2017. A hearing

was held on May 8, 2017 and May 9, 2017. The Commonwealth submitted its

brief in opposition to the petition on June 8, 2017, and the Defendant submitted

his brief in support of the petition, after the grant of an extension of time, on June

22, 2017. The matter is now ready for disposition.

II.   Discussion

       A.       Trial counsel was not ineffective in focusing the theory of
                the defense on Defendant's claim of innocence, nor in
                making strategic choices with that theory in mind.

      In. the first issue in his petition, defendant contends· that trial counsel Philip

D. Lauer, Esq. was ineffective insofar as he failed to present a defense on the

issue of the cause of Carrie Smith's death. Defendant argues that while the

Commonwealth's medical expert opined that Ms. Smith's death, two months after

the robbery, was the ultimate result of a heart attack and related medical

complications occasioned by the robbery, other medical experts would have

testified that Ms. Smith's death was solely caused by medical conditions from

which she suffered prior to the robbery.

                                    Page 3 of 15
            In considering this issue, we begin with the notion that counsel is presumed

      effective. Commonwealth v. Breakiron, 729 A.2d 1088 (Pa. 1999). In order to

      prevail on his   petition for collateral relief on the basis of a claim of ineffective

     . assistance of counsel, Defendant bears the burden of establishing that his counsel

      was ineffective, to such a degree that his ineffectiveness "so undermined the

     truth-determining process that no reliable adjudication or guilt or innocence could

      have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). Such a determination is made

     utilizing the well-known tripartite performance and prejudice test as set out in

     Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), pursuant to which Defendant

     must show (a) that the claim underlying his claim of ineffectiveness has arguable

I-   merit, (b) that defense counsel's act or omission was not reasonably designed to

     advance Defendant's interests, and (c) that "there is a reasonable probability

     that, but for counsel's unprofessional errors, the result of the proceeding would

     have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). Where

     a defendant fails to establish even one of these factors, relief may not be granted.

           Because we find that Defendant herein has failed to establish prejudice, we

     must deny relief with respect to this particular claim. Prejudice must be

     established by a showing that "but for the errors and omissions of counsel, there

     is a reasonable probability that the outcome of the proceedings would have been

     different." Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).

           Quadir Taylor was a codefendant of Defendant and Rebecca Johnson,

     charged with the same crimes for which Defendant was convicted. At his trial in

                                         Page 4 of 15
    January 2017, Taylor admitted his participation in the home invasion robbery of

    Carrie Smith, defending against the second-degree murder charge solely upon

    the issue of causation .1 Again, it is the element of causation against which

    Defendant herein contends that his trial counsel failed to effectively defend. In

    pursuit of his defense, Taylor called Ors. Edward Viner and Arnold Meshkov to

    testify. These are the same doctors proffered by Defendant in pursuit of the

    instant petition. In their testimony at the Taylor trial, Drs. Viner and Meshkov

    testified in substantially the same manner as they did at the hearing on the within

    petition. Notably, both doctors testified at the hearing in this matter that their

    testimony on that occasion was consistent with their testimony at the Taylor trial.

    N .T. 5/8/17, pp. 98-99, 142. We note as an additional matter that Taylor's counsel

thoroughly cross-examined the expert witnesses for the Commonwealth at the

Taylor trial:     See   Commonwealth      v.   Quadir Taylor,    CP-48-CR-00587-2016

(Northampton County 2017).

          We take judicial notice sua sponte, pursuant to Pa.R.E. 201(c)(1), of the

conviction of Quadir Taylor for the second-degree murder of Carrie Smith

following a jury trial. The judicial record of that proceeding, including the trial

transcript, may be judicially noticed. Commonwealth v. Mutzabaugh, 699 A.2d

1289 (Pa. Super. 1997).




1
  The delay between the Suero/Johnson trial in October 2013 and the Taylor trial in January
2017 was occasioned by the fact that Taylor remained unidentified to police until some time
after the Suero/Johnson trial.

                                      Page 5 of 15
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       Given the outcome of the Taylor trial, we cannot conclude that there is a

 reasonable probability, had Attorney Lauer called Drs. Viner and Meshkov at

 Defendant's trial, that the outcome of that proceeding would have been different.

 While it is possible that a different jury may have reached a different conclusion

 when presented with the same causation evidence as that presented at the Taylor

trial, we are not concerned with that which is in the realm of possibility, but with

that which 'is reasonably probable. Accordingly, D'efendant has failed to establish

that he was prejudiced by trial counsel's failure to more strenuously pursue a

defense on the issue of causation, and his petition must fail. Commonwealth v.

Strickland, supra at 694.

       While Defendant's failure to establish prejudice, alone, is a sufficient basis

upon which we may deny post-conviction relief, we find as an additional matter

that Defendant's claim of ineffectiveness on this issue likewise fails, at a
                        a,f\ c.y--
minimum, to establish one �rang of the performance portion of the Pierce test,

as we cannot conclude that Attorney Lauer's decision not to pursue a causation

defense lacked a reasonable basis. "[W]here 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. Co/avita, 993 A.2d 874, 887 (Pa. 2010).

      At the hearing on the within petition, Attorney Lauer testified that, in

preparing for trial, he evaluated the possibility of pursuing a defense on the issue

of causation, and ultimately elected, after reviewing the medical records and after

                                     Page 6 of 15
 consultation with an expert in the field of clinical pathology and with other

 counsel, not to pursue such a defense. N.T. 5/8/17, pp.10-11, 17-18, 54. This

 decision by Attorney Lauer was based largely upon the expert's conclusion that

there was sufficient medical evidence to show that the robbery was a "very

substantial contributing factor" to Ms. Smith's death.         N .T.   5/8/17, p.18.

Strategically, Mr. Lauer believed that, because there was not a strong basis to

challenge causation, the loplcal course was to test the· Commonwealth's. experts

on cross-examination and otherwise focus the defense on Defendant's contention

that he was not involved, both through Defendant's testimony and a thorough

test of the credibility of the Commonwealth's fact witnesses who identified

Defendant as a perpetrator. N.T. 5/8/17, pp.21-22, 29.

       Based upon the record before us, we cannot conclude that Defendant has

proven that trial counsel's strategic decision not to strenuously test the

Commonwealth's causation evidence was so unreasonable that "no competent

lawyer would have chosen it." Commonwealth v. Rega, 933. A.2d 997, 1018 (Pa.

2007). Furthermore, we conclude that trial counsel's choice not to strenuously

defend on the issue of causation had "some reasonable basis designed to

effectuate [Defendant's] best interests[.]" Commonwealth v. Speight, 677 A.2d

317, 322 (Pa. 1996). More specifically, we find that it was reasonable for trial

counsel to focus Defendant's assertion innocence, which he believed, in his

decades of experience, to have a significantly greater likelihood of success in this

case than a challenge to causation. The choice to focus on a stronger defense of

                                   Page 7 of 15
 innocence, in contrast to a weak defense on causation, was reasonable insofar as

 it made the stronger defense all the more credible. See, e.g./ Commonwealth v.

 Hawkins, 894 A.2d 716 (Pa. 2006) (trial counsel reasonable in not seeking alibi

 instruction, so as not to draw attention to the weakness of the defendant's alibi

evidence); Commonwealth v. DeHart, 650 A.2d 38 (Pa. 1994) (trial counsel not

ineffective for admitting defendant was guilty of escape, in order to maintain

credibility in denial of guilt on other more serious charges); Commonwealth v,

Garcia, 535 A.2d 1186 (Pa. Super. 1988) (trial counsel not ineffective for pursuing

defense of innocence to homicide charge rather than presenting heat of passion

argument in support of voluntary manslaughter); Commonwealth v. McGrogan,

297 A.2d 456 (Pa. 1972) (trial counsel not ineffective in defending on the basis

of   innocence   rather   than   pursuing    compromise    verdict   of   voluntary

manslaughter).

      Moreover, we cannot conclude that trial counsel's failure to object to

leading questions posed by the District Attorney to the medical expert witnesses

rendered counsel's representation of the Defendant ineffective. Again, counsel's

strategy was to focus on the Defendant's contention that he was not involved in

the robbery. To that end, the medical testimony regarding the causation of Ms.

Smith's death was not objectionable to the defense and, as Attorney Lauer

testified at the hearing on the instant petition, "since we weren't challenging it,

there was no harm done [in allowing leading questions] and, in fact, it got it over

quicker for her to just plow through the medical testimony." N.T. 5/8/17, p.37.

                                   Page 8 of 15
 This allowed the focus of the trial to lay largely on the question· of who was

 responsible for the robbery, which was helpful to the chosen defense strategy.

 Furthermore, as Attorney Lauer testified, "[y]ou don't object just because

something is leading. You object if there's a reason that you don't want it to come

out that way." N.T. 5/8/17, p.39. While questions on direct examination should

not be leading, there was nothing to be gained, in defense counsel's strategy, by

objecting to the Commonwealth's leading questions to its medical experts. For all

of these reasons, we find that Defendant's petition for post-conviction relief must

be denied with respect to trial counsel's decision not to pursue a causation

defense and his choice not to object to leading questions on direct examination.

      B.    Trial counsel was not ineffective in choosing not to present an
            alibi witness who was not credible, and whose testimony
            would likely have opened the door to damaging rebuttal
            evidence.

      Defendant next contends that his trial counsel was ineffective in failing to

present the testimony of Emmanuel Sylvestre, who was allegedly able to provide

an alibi for Defendant insofar as Mr. Sylvestre contends that Defendant was at

home with him at the time of the robbery.

      Mr. Sylvestre testified at the hearing in this matter. In that testimony, Mr.

Sylvestre indicated that he and Defendant became close friends in the months

prior to the robbery, spending time together every day. N.T. 5/9/17, p.144. Mr.

Sylvestre testified that he recalls spending the weekend with Defendant during

the time when the robbery occurred. N.T. 5/9/17, pp.146-147. More specifically,


                                  Page 9 of 15
         Mr. Sylvestre testified that he and Defendant closed the barbershop where

         Defendant worked at 8:00 p.m. on the night of the robbery, they drove to

         Defendant's apartment in Allentown, they ate and watched television, Mr.

        Sylvestre fell asleep on the couch at 1: 00 a .m. after Defendant was asleep in his

        own bedroom, and at 8:00 a.m. the following day they woke up and went back

        to the barbershop. N.T. 5/9/17, pp.153-155.

               Mr. Sylvestre testified that he assumed that Defendant would have told


    I   authorities that the two were together and that Mr. Sylvestre could provide an

        alibi, and was surprised during the trial to learn that Defendant could not
I       specifically recall his whereabouts during the robbery. N.T. 5/9/17, pp.147-148.

I       Mr. Sylvestre testified that, after the close of defense testimony, he approached

        Attorney Lauer on two occasions and informed him of the alibi testimony he could

        provide. N.T. 5/9/17, pp.149, 157.

              Attorney Lauer did not call Mr. Sylvestre as a witness. When questioned

        about his reasoning in not calling this witness, Mr. Lauer testified that Mr.

        Sylvestre was not brought to his attention until after the trial, but that even if he

        had been brought to his attention during the trial, he would likely not have called

        that witness. N.T. 5/8/17, p.32. Mr. Lauer indicated that, because he had not

        been made aware of an alibi witness prior to trial, he had not given notice of an

        alibi witness, and would have had to seek relief from the alibi notice requirement

        in order to call an alibi witness. N.T. 5/8/17, p.60. He chose not to seek such

        relief due to his concern that the Commonwealth would seek, as a matter of

                                           Page 10 of 15
 rebuttal, to introduce cellular phone location information related to the location

 of Defendant's phone just prior to, during, and just after the robbery, which

 evidence had previously been excluded from the trial on account of late notice.

 N.T. 5/8/17 pp.29-30, 32, 47-48, 60. Mr. Lauer was concerned about the

 possibility of the cellular phone location evidence being admitted because it was

 highly damaging to Defendant's theory of the case that he did not participate in

the robbery, given the proximity of Defendant's phone to the scene of the robbery

at the time it occurred. N.T. 5/8/17, p.32. Moreover, the testimony of Mr.

Sylvestre as to Defendant's whereabouts would have been inconsistent with the

cellular phone location evidence. Id.

      We find this tactical decision on the part of Mr. Lauer to be eminently

reasonable. First, the late revelation of Mr. Sylvestre's proffered alibi testimony,

when he had ample prior opportunity to make such revelation, tended to color

the testimony with incredibility. We note that Mr. Sylvestre's testimony at the

hearing was further lacking in credibility in that his recollection of Defendant's

whereabouts appeared largely based upon what he recalled that he and

Defendant did on a routine basis rather than a specific recollection of the night

on which the robbery occurred. More significantly, Mr. Lauer's concern regarding

possible rebuttal evidence was valid, particularly given how closely it would place

Defendant's phone to the scene of the robbery during the time it was being

committed, which would only serve to damage the theory of the defense.

Accordingly, we conclude that trial counsel's decision in this regard had a·

                                  Page 11 of 15
     reasonable basis designed to protect Defendant1s interests, and Defendant's

     petition on this point must therefore fail. See, e.g., Commonwealth v. Peterkin,

     649 A.2d 121 (Pa. 1994) (trial counsel not ineffective for failing to call mitigating

     character witnesses at a capital sentencing proceeding where he held legitimate

    concerns that the cross-examination of those witnesses would be damaging to

    the defendant).

           C.    The Superior Court has previously concluded that Defendant
                 was not prejudiced by any alleged prosecutorial misconduct.
                 Insofar as Defendant has raised herein an issue of
                 prosecutorial misconduct that was not ruled upon by the
                 Superior Court, there is insufficient evidence of record for this
                 Court to rule on the merits.


I          Defendant next contends that trial counsel was ineffective in withdrawing

    a motion for a mistrial, which motion had been made following allegedly

    inappropriate and prejudicial comments by the Assistant District Attorney during

    her closing argument. Because this issue has been previously lltlqated, we must

    deny Defendant's request for relief.

          At trial, following the Commonwealth's closing argument, counsel for

    Defendant made a motion for a mistrial based upon a number of statements made

    therein. After a lengthy conference in chambers between the Court and all

    counsel, Attorney Lauer withdrew the motion, relying upon the curative jury

    instructions proposed by the Court in moving forward with the trial. In his post-

    sentence motion, Defendant nonetheless argued that he was entitled to a new

    trial on the basis of the prosecutor's inappropriate closing argument. Based upon


                                       Page 12 of 15
 counsel's withdraw of the motion for a rnistrial, we concluded that the issue was

 waived. On direct appeal, Defendant contended, in a related arqurnent, that this

 Court erred in failing to sua sponte declare a mistrial on the basis of the

 prosecutor's inappropriate remarks. The Superior Court, too, found that the issue

 was waived as a result of counsel's presentation and later withdraw of the motion,

 but,    moreover, the Superior Court addressed the Defendant's claims of

prosecutorial misconduct on their merits and concluded, "after careful review"

and a thorough discussion of each issue, "that the Commonwealth did not commit

prosecutorial misconduct[.]" Commonwealth v. Suero, 1025 EDA 2014 (Slip op.

at p.9).

         In reaching this conclusion, the Superior Court thoroughly addressed the

issues of (1) the prosecutor's alleged mischaracterization of the victim's

statement about the skin color of one of the persons involved in the robbery; (2)

the prosecutor's alleged statement of her personal opinion regarding the

credibility   of     the   Defendant's     testimony;      (3)   the   prosecutor's    alleged

mischaracterization of the testimony of witness Steve Wilson; and ( 4) the

prosecutor's allegedly improper suggestion to the jury that they consider the

demeanor of the Defendant during the playing of a 911 tape. The law regarding

a defendant's entitlement to relief in post-conviction proceedings is clear that

where a defendant's "claims were discussed thoroughly by [the Superior] Court

in a memorandum affirming [the defendant's] judgment of sentence" those issues

are     considered    '"finally   litigated'   and   not    subject    to   further   review."

                                         Page 13 of 15
      Commonwealth v. Bond, 630 A.2d 1281, 1282 (Pa. Super. 1993), citing 42

      Pa.C.S. § 9543(a)(3).

             While Defendant has attempted in his petition to reframe the issue as a

      question of trial counsel's ineffectiveness in withdrawing the motion for a mistrial,

      it is abundantly clear that the heart of the issue is the same. Moreover, were we

      to independently analyze Defendant's claim of ineffective assistance of counsel,

      we would find that the underly'ing basis therefor lacks arguable merit, for the

     same reasons discussed by the Superior Court on direct appeal.

            One issue of prosecutorial misconduct raised by Defendant in his direct

     appeal that was not addressed by the Superior Court on the merits was the issue

 I   of the prosecutor's alleged inappropriate display of an unredacted document to


I    the jury during closing arguments. The Commonwealth concluded that it was "not

     able to conduct a meaningful review of this claim of prosecutorial misconduct"

     because Defendant had failed to develop the record on this issue. Suero, supra

     at 8. While this issue was thus clearly not previously litigated on direct review,

     Defendant has failed to develop the record on this issue any further on collateral

     review, and accordingly we find that we are likewise unable to address this issue

     on the merits.

            For all of these reasons, we find that Defendant is entitled to no relief on

     the issue of trial counsel's alleged ineffectiveness in withdrawing the motion for

     a mistrial.




                                        Page 14 of 15
        D.    Defendant is not entitled to relief in this matter based upon a
              claim of cumulative error.

        Finally, Defendant makes a claim for relief based upon alleged cumulative

error during the course of the trial. A claim of cumulative error is a basis upon

which     a   defendant   may   be   afforded   post-conviction   collateral   relief.

Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). In order for a defendant to

be afforded relief on this basis, it must be determined that the cumulative

prejudicial effect of multiple errors, each of which alone did not prejudice the

defendant, is such that the defendant was prejudiced. Commonwealth v. Koehler,

36 A.3d 121 (Pa. 2012). However, where a defendant's multiple allegations of

error are rejected on the basis of the other two prongs of the Pierce test, there is

no basis upon which to accumulate errors. Commonwealth v. Sattazahn, 952 A.2d.

640 (Pa. 2008).

        Because we have rejected each of Defendant's claims on these alternative

bases, Defendant can be afforded no relief on an accumulation claim. Id.

Moreover, based upon our review of the issues raised by Defendant herein, and

upon our consideration of the entire record in this matter, we conclude that

Defendant did in fact receive a fair trial, and that the effect of any errors that

may have occurred during the trial was harmless. Defendant is not entitled to a

new trial.

      WHEREFORE, we enter the following:




                                  Page 15 of 15
      IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
                 COMMONWEALTH OF PENNSYLVANIA
                        CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA
                                                  No.    C-48-CR-01552-2013
             v.
ROGEL I. SUERO,

                          Defendant.

                            OPINION OF THE COURT

      AND NOW, this 24th day of July 2017, upon consideration of Defendant's

petition for post-conviction relief pursuant to the Pennsylvania Post Conviction

Relief Act, it is hereby ORDERED that the petition is DENIED in its entirety.

      Defendant is hereby advised that he may file an appeal of this Order

within thirty (30) days of the date thereof.

                                                  BY THE COURT:


                                                   {o..,J.
                                                       t. la e ,  4
                                                 PAULA A. ROSCIOLI, J.
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