J-S57005-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
           v.                             :
                                          :
EDWIN APONTE,                             :
                                          :
                   Appellant              : No. 1849 EDA 2013

                   Appeal from the PCRA Order June 3, 2013,
                  Court of Common Pleas, Philadelphia County,
                Criminal Division at No. CP-51-CR-0009701-2007

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 06, 2014

     Edwin Aponte1 appeals pro se from the June 3, 2013 order entered by

the Philadelphia County Court of Common Pleas dismissing his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546



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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). We affirm.

     The facts of the case, summarized by the PCRA court, are as follows:

           On August 17, 2006, [Aponte] shot and killed
           Marquis Ward near C and Ruscomb Streets in
           Philadelphia. At approximately 3:30 pm, Marquis
           Ward, the decedent, was driving his car with his
           girlfriend, Sheena Geiger, and saw [Aponte]. The
           decedent exited his car and began to converse with


1
   Aponte indicates in his brief that his name is Edwin Aponte. We note,
however, that the trial court record and the memorandum disposing of his
direct appeal before this Court both refer to Aponte as Edward Aponte.
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             [Aponte]. The confrontation escalated into a fistfight.
             They were separated numerous times but continued
             to fight. When the fight was finally over, [Aponte]
             was bleeding and was clearly the loser. After they
             separated a final time, [Aponte] pulled out a gun and
             fired multiple times at the decedent. Ms. Geiger




PCRA Court Opinion, 3/21/14, at 2 (record citation omitted).

       A jury convicted Aponte of first-degree murder and possessing an

instrument of crime on November 4, 2008.2           The trial court sentenced

Aponte on January 12, 2009 to life in prison without parole for murder and

to a concurrent term of one to two years of incarceration for possessing an

instrument of crime. Following the denial of post-sentence motions, Aponte

appealed his convictions. This Court affirmed his judgment of sentence on

October 26, 2010. The Pennsylvania Supreme Court denied his request for

allowance of appeal on April 13, 2011.

       Aponte filed a timely pro se PCRA petition on June 30, 2011, raising

two issues     (1) a violation of his Sixth Amendment right to a trial by an



                         brother made a comment to a juror in the hallway

and (2) ineffective assistance of direct appeal counsel for failing to raise a

Sixth Amendment violation of his right to confrontation on appeal, as the

officer who testified did not prepare the police report testified to. The PCRA


2
    18 Pa.C.S.A. §§ 2502(a), 907.


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court appointed counsel, who filed a Turner/Finley

requested to withdraw as counsel on June 28, 2012. The PCRA court filed



                                                       3
pursuant                                                   On August 6, 2012,

Aponte filed a pro se response, raising two additional issues for the PCRA

                 (1) ineffective assistance of trial counsel for failing to seek a

curative instruction after the trial court denied his request for a mistrial on

the jury issue listed above and (2) ineffective assistance of trial and direct

appeal counsel for failing to raise a Brady4 claim regarding an agreement

between the Commonwealth and an incarcerated eyewitness who testified

against Aponte at trial.     On October 26, 2012, PCRA counsel filed an

amended Turner/Finley

issues raised.



Turner/Finley                   ers filed by PCRA counsel, and conducting an



petition without a hearing and granted counsel permission to withdraw.




3
   The Rule 907 notice does not appear on the docket of the certified record
on appeal, nor is the document itself contained in the record. Aponte does
not contest that the PCRA court issued the Rule 907 notice in this case, and
his response thereto does appear in the certified record. Therefore, the
absence of the Rule 907 notice does not hamper our review.
4
    Brady v. Maryland, 373 U.S. 83 (1963).


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      Aponte filed a timely pro se notice of appeal, followed by a court-

ordered concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). He raises four issues for our review:

      I.     Is [Aponte] entitled to a new trial as the result of
             [i]neffective [a]ssistance of [c]ounsel for failure to
             raise a 6th Amendment [v]iolation when [an] officer
             gave testimony to a report he did not prepare which
             denied [Aponte] [the] right to confront his accuser?

      II.    Is [Aponte] entitled to a new trial as the result of
             [i]neffective [a]ssistance of [c]ounsel when trial
             counsel failed to ask for a curative instruction [to] be

             request for a mistrial?

      III.   Is [Aponte] entitled to a new trial as the result of a
             layered claim of [i]neffectiveness when both trial and
             appellate counsel failed to raise a Brady [v]iolation

             lienecy [sic] for his cooperation?

      IV.
             counsel filed a defective Finley letter and he did not
             list all issues [Aponte] asked him to raise possibly




      Our standard of review regarding an order denying a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.     Commonwealth v. Davis,

86 A.3d 883, 887 (Pa. Super. 2014). The P

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

Id.




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     Each of the issues raised by Aponte on appeal present a claim of

ineffective assistance of counsel.   It is well-settled law that we presume

counsel provided effective assistance.     Commonwealth v. Sepulveda,

55 A.3d 1108, 1117 (Pa. 2012).

           To establish ineffectiveness, a petitioner must plead
           and prove the underlying claim has arguable merit,

           c
           actions will not be found to have lacked a reasonable
           basis unless the petitioner establishes that an
           alternative not chosen by counsel offered a potential
           for success substantially greater than the course
           actually pursued. Prejudice means that, absent

           the outcome of the proceedings would have been
           different.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012), appeal

denied, 63 A.3d 773 (Pa.

                                              Commonwealth v. Simpson,

66 A.3d 253, 260 (Pa. 2013) (citation omitted).

     As his first issue raised on appeal, Aponte asserts that trial counsel

was ineffective for failing to object, on confrontation grounds, to Officer




                                           -8. Aponte asserts that this claim




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credibility. Id. at 8-9. Aponte further asserts that his claim has merit based

                                                          Bullcoming v. New

Mexico, __ U.S. __, 131 S.Ct. 2705 (2011).5                                 -10.

                                             ows prejudice because as stated

before, [the] officer testified to getting descriptions of two offenders, also to

                                                           Id. at 7. He makes

no statement regarding whether counsel had a reasonable basis for failing to



      The PCRA court found that this issue was without merit, as Officer

DeNofa testified that although he did not physically prepare the report in

                                                    was at the scene and was




                                              Id.

                                    include any statement regarding a lack of




5
     In Bullcoming, the United States Supreme Court held that the
Confrontation Clause does not allow the prosecution to introduce a forensic
laboratory report, which included a testimonial certification, created to prove
a fact at a criminal trial, through the testimony of a forensic analyst who did
not perform or observe the test being performed nor signed the certification;
the Confrontation Clause entitles the defendant to have the analyst testify
that made the certification, unless the analyst is unavailable and the
defendant had an opportunity prior to trial to cross-examine that analyst.
Bullcoming, 131 S. Ct. at 2713-17.


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Simpson, 66 A.3d at 260, we also conclude that he failed to establish that




                                            -

                            -16. It includes general information, including the

location of the alleged crime, the date of its occurrence, and a description of

the incident                                                                    -



                                                      ite t-shirt, dark shorts[.]

               -                                           -

Id. Though Aponte claims that the description of the potential suspects was

prejudicial, the record reflects that Aponte testified at trial and admitted that

he shot the victim, claiming that he did so because he believed he saw the

victim reaching for a gun

waistband and shot him instead.        N.T., 11/3/08, at 41-42.      As Aponte



testimony regarding a description of the shooter was not prejudicial.

Therefore, counsel cannot be deemed to have provided ineffective assistance

on this basis.

      Next, Aponte argues that trial counsel provided ineffective assistance

because he failed to request a curative instruction after the trial court denied

his reques



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                                                          -14. The PCRA court

found that because Aponte raised the issue of trial court error for failing to

grant the requested mistrial, this issue had been previously litigated. PCRA

Court Opinion, 3/21/14, at 7.      It further found the issue to be meritless



                                                                not deny him a

fair and impartial jury. Id.




the denial of his request for a mistrial was previously litigated.     Although

Aponte raised on direct appeal the issue of trial court error for failing to



raise distinct Sixth Amendment claims, separate and apart from the

underlying claims of trial court error; thus, prior litigation of a direct review



Commonwealth v. Johnson, 64 A.3d 622, 623 (Pa. 2013) (citation

omitted).

      We agree with the PCRA court, however, tha




curative instruction.   In determining that the trial court did not err by

denying the request for a mistrial, we stated:



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           brother came to light, the trial court individually
           polled each juror, including the alternatives, and
           ascertained that the statement would not affect their
           ability to be a fair juror. N.T. Trial (Jury) Vol. 1,
           10/30/08, at 236-

           communications [to a jury]       have occurred, an
           appellate court is limited to    a determination of
           wh
                        Commonwealth        v. Syre, 518 A.2d
           535, 536 (Pa. 1986). Since the   record substantiates


           and, commensurately, that the alleged prejudicial
           event cannot reasonably be said to have deprived
           [Aponte] of a fair and impartial jury, we cannot
           conclude that the trial court abused its discretion in
           refusing to grant a mistrial based on the comment.

Commonwealth v. Aponte, 1865 EDA 2009, 12 (Pa. Super. October 26,




prejudicial pursuant to the law of the case doctrine. This doctrine, defined

                                                   upon a second appeal, an

appellate court may not alter the resolution of a legal question previously

                                               Commonwealth v. Starr,

664 A.2d 1326, 1331 (Pa. 1995).

     As this Court previously concluded that the statement made to the




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Therefore, no relief is due.

      In his third issue on appeal, Aponte raises a layered ineffectiveness

claim, asserting that both trial and appellate counsel were ineffective for

failing to raise a Brady

inform Aponte that one of its testifying eyewitnesses, Emmanuel Ramos




14-17. The PCRA court found this issue to be meritless because the record



testimony, only that the Commonwealth would make his cooperation known

to the judge hearing his case.      PCRA Court Opinion, 3/21/14, at 8.

Furthermore, the PCRA court states that Aponte does not allege, and the

record does not support a finding, that trial counsel was unaware of the

                                    Id.

      In Brady v. Maryland, the United States Supreme Court held that

                                                  favorable to an accused

upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the

               Brady, 373 U.S. at 87. This holding has been adopted by our

Supreme Court, which set forth the standards for establishing a Brady




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suppressed by the state, either willfully or inadvertently; (2) the evidence at

issue is favorable to the defendant; and (3) the evidence was material,

                                                 Commonwealth v. McGill,

574 Pa. 574, 583, 832 A.2d 1014, 1019 (2003) (citations omitted).

      The record reflects that when the Commonwealth called Ramos to

testify, the first questions the prosecutor asked him surrounded his

incarceration in Montgomery County for pending criminal charges and the

                                                        case at bar known to

the judge hearing his pending case.      N.T., 10/29/08, at 192-93.     Ramos

agreed and testified that there were no deals or promises made in return for

his testimony. Id. at 193. At the conclusion of his direct testimony, counsel

for Aponte cross-examined Ramos extensively about his incarceration in

                                                                        Id. at

216, 218-19. Trial counsel further questioned Ramos about an outstanding

warrant for his arrest in Philadelphia County, a recent probation violation,

and his criminal history, including an adjudication of delinquency in 2000.

Id. at 216-18, 220-21.

      Thus, as the PCRA court found, the record does not support a finding

that the Commonwealth failed to disclose to trial counsel that Ramos was



Even if the Commonwealth withheld that information prior to trial, we cannot

say that any prejudice ensued, as counsel thoroughly and extensively cross-



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examined Ramos on this issue, bringing it before the jury for its

consideration.   In short, there is no support in the record that a Brady



nor appellate counsel can be found to have rendered ineffective assistance

on this basis.

      In his final issue, Aponte contends that PCRA counsel was ineffective



                                                                  PCRA court

found that PCRA counsel complied with the dictates of Finley and that this

issue is meritless. PCRA Court Opinion, 3/21/14, at 8-9.

      Counsel seeking to withdraw from PCRA representation must: (1) file a

                                            extent of his/her review, (2) list

each issue the petitioner wishes to have reviewed in said letter, and (3)

explain why these issues are meritless, whereupon the PCRA court will

conduct an independent review of the record and decide whether the petition

is meritless. Turner, 518 Pa. at 494-95, 544 A.2d at 928; Finley, 550 A.2d

at 215. Counsel is also required to send to the petitioner: (1) a copy of the



(3) a statement advising petitioner of the right to proceed pro se or by new

counsel. See Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super.

2011).




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      Our review of the record reveals no indication that the issue included

in his brief on appeal      that trial counsel was ineffective for withdrawing a

motion to suppress an out-of-court identification by Sheena Geiger          was

ever presented to PCRA counsel by Aponte. The record reflects that Aponte

authored a letter to PCRA counsel requesting that he raise the Brady claim,

which counsel addressed in his second Turner/Finley

See



Notice, 8/26/12, at 1-2. Aponte does not state in his brief on appeal when,

if ever, he requested that PCRA counsel raise this issue. See

at 17-20.

      The record reveals that counsel complied with these requirements and

addressed each issue that Aponte raised.       As there is no indication in the

record that Aponte requested that counsel address this issue, we have no

                                 Turner/Finley

that he provided ineffective assistance.

      Furthermore, Aponte never raised the underlying issue of trial



axiomatic that issues not presented before the PCRA court are waived and

cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Thus, the

underlying issue is not s

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




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