J-S52041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    MOHAMED SITA BERETE                        :
                                               :
                      Appellant                :       No. 1609 MDA 2016

               Appeal from the PCRA Order September 15, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000933-2011


BEFORE:       GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED NOVEMBER 03, 2017

        Appellant, Mohamed Sita Berete, appeals pro se from the order

entered in the Berks County Court of Common Pleas, which denied his first

petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1        We

affirm.

        This Court previously set forth the relevant facts and procedural

history of this case in its memorandum affirming the judgment of sentence

as follows:

          [A]t approximately 10:30 p.m. on February 18, 2011,
          Officer Christopher A. Cortazzo of the Reading Police
          Department was on duty, patrolling the area of the 200
          block of North Ninth Street, in a marked police car. Officer
          Cortazzo observed [Appellant’s vehicle] driving along Ninth
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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       Street that had tinted front [driver] and passenger-side
       windows. Officer Cortazzo explained that there was a
       significant amount of vehicle traffic because a local hockey
       game had recently ended. While driving in the left lane
       along Ninth Street, with a consistent line of vehicles
       travelling in the right lane, Officer Cortazzo passed
       [Appellant’s vehicle]. According to Officer Cortazzo:

          [Appellant’s] vehicle appeared to be going very slow
          so [Officer Cortazzo] attempted to slow down so the
          vehicle could pass [the officer’s car] and [Officer
          Cortazzo] could get behind it and run the plate. As
          [Officer Cortazzo] slowed down, it appeared
          [Appellant’s] vehicle was going slower till [Officer
          Cortazzo] almost had to stop to permit [Appellant’s
          vehicle] to go past [Officer Cortazzo] so [he] could
          maneuver behind it, [and] run the plate...And once
          [Officer Cortazzo] did that, to ensure it wasn’t
          stolen...[he] activated [his] overheard emergency
          lighting...[and Appellant’s vehicle stopped in the left
          lane of traffic.]

       As Officer Cortazzo exited his vehicle and approached
       [Appellant’s] vehicle, [Officer Cortazzo] was able to
       observe [Appellant] through the rear window lean and
       reach toward the center console area of the vehicle.
       Officer Cortazzo asked [Appellant] for his license,
       registration, and insurance. According to Officer Cortazzo,
       [Appellant] “fumbled around” and then handed [over] his
       license. Upon [being asked] again for the insurance and
       registration [Appellant] handed Officer Cortazzo a “clump
       of paperwork from the glove compartment.”           Officer
       Cortazzo had to “fish through that paperwork to find the
       registration and insurance” and “while [he] was doing that,
       [Appellant] again turned his body to the right blocking
       what [Officer Cortazzo] could see with his back and doing
       something on his right side.” Officer Cortazzo had to
       caution [Appellant] to “stop moving around,” “turn forward
       and pay attention.” When questioned by Officer Cortazzo
       as to whether the vehicle was [Appellant’s], [Appellant]
       responded that the vehicle [belonged] to “Manny.” Officer
       Cortazzo reported that the vehicle was registered to an
       Edwin Acevedo.         During their conversation about
       ownership of the vehicle, [Appellant] again turned to his

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       right side after which he was again instructed to “turn
       around and stop moving” after which Officer Cortazzo
       asked [Appellant] if “there were any weapons in the car” to
       which [Appellant] replied “no.”

       Officer Cortazzo then requested that [Appellant] step out
       of the vehicle as it was [Officer Cortazzo’s] intent to “pat
       [Appellant] down for weapons because of his movements.”
       As [Appellant] exited the vehicle, Officer Cortazzo
       instructed [Appellant] to turn around from [Officer
       Cortazzo] and face [the] vehicle. [Appellant] was not
       responding; rather, he was “shifting his weight from right
       to left and looking around.” Unsure of whether [Appellant]
       was “trying to retrieve or hide a weapon or contraband,”
       on [Officer Cortazzo’s] third request to [Appellant] to face
       his vehicle, Officer Cortazzo “reached out to turn
       [Appellant]; and that’s when [Appellant] took both hands
       and punched [Officer Cortazzo] in the chest, knocking him
       backwards.” Officer Cortazzo fell back approximately five
       feet and [Appellant] turned and fled, running “south
       against the flow of traffic, in the lane of traffic.”

       When Officer Cortazzo regained his balance, he chased
       after [Appellant] on foot, yelling for him to stop.
       [Appellant] continued to run, forcing Officer Cortazzo to
       deploy his Taser after which [Appellant] immediately
       dropped to the ground. As [Appellant] fell to the ground,
       Officer Cortazzo “heard a metal object hit the ground.”
       Officer Cortazzo then saw a small semiautomatic pistol
       lying next to [Appellant]. [Appellant] repeatedly stated,
       “it’s not mine.” A search incident to arrest of [Appellant’s]
       vehicle revealed the presence of narcotics.

       A serial number scan of the firearm recovered revealed
       that the owner was George Borgoon, a local store owner
       who had never met [Appellant] before. When contacted
       by police, Borgoon stated that he had not seen the firearm
       for two years, although he never knew it was missing. He
       believed that the firearm was secured under his son’s desk
       in the back of the store. According to Borgoon’s testimony
       at the time of trial, he does not know [Appellant], and
       [Borgoon] never gave [Appellant] permission to have the
       gun.


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          Following a jury trial, [Appellant] was convicted of firearms
          not to be carried without a license, escape, receiving stolen
          property, and possession of a controlled substance. The
          trial judge also found [Appellant] guilty of windshield
          obstructions and wipers, a summary offense. … …[On]
          March 20, 2012, [Appellant] was sentenced to an
          aggregate term of 62 to 168 months’ imprisonment.
          [Appellant] timely filed a post-sentence motion, which the
          trial court denied. …

Commonwealth v. Berete, No. 877 MDA 2012, unpublished memorandum

at 1-4 (Pa.Super. filed March 5, 2013). This Court affirmed the judgment of

sentence on March 5, 2013, and on September 17, 2013, our Supreme Court

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

Berete, 69 A.3d 1283 (Pa.Super. 2013), appeal denied, 621 Pa. 669, 74

A.3d 1029 (2013).

       Appellant timely filed his first pro se PCRA petition on May 8, 2014.

The PCRA court appointed counsel on May 15, 2014, who filed a

Turner/Finley2 no-merit letter on October 2, 2015, along with a motion to

withdraw. Appellant filed on October 30, 2015, a pro se notice of intent to

respond to counsel’s Turner/Finley letter.           On December 3, 2015,

Appellant filed a pro se amended PCRA petition.         On the following day,

Appellant filed a pro se response to counsel’s Turner/Finley letter, claiming

counsel failed to investigate the issues in Appellant’s PCRA petition.    The

PCRA court granted counsel’s motion to withdraw on December 11, 2015,
____________________________________________


2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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and appointed new PCRA counsel on the same day.

      On April 25, 2016, the PCRA court held an evidentiary hearing. At the

hearing, both officers confirmed their testimony was consistent and at no

time did they ever state that their testimony in the criminal trial was false.

The PCRA court also determined the City of Reading did not “terminate”

Officer Cortazzo.

      Appellant’s second PCRA counsel filed a Turner/Finley no-merit letter

on August 22, 2016, and a motion to withdraw on August 26, 2016, which

the PCRA court granted that same day. Appellant filed a pro se response to

the second Turner/Finley letter on September 6, 2016, claiming PCRA

counsel failed to investigate (a) the inconsistent testimony of Officers

Cortazzo and Menges and (b) Officer Cortazzo’s termination.        The PCRA

court denied PCRA relief on September 16, 2016. On September 28, 2016,

Appellant timely filed a pro se notice of appeal.   The PCRA court ordered

Appellant on October 4, 2016, to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant timely

complied.

      Appellant presents the following issues verbatim for our review:

         (1) WHETHER   THE   [PCRA]  COURT    ABUSED   ITS
         DISCRETION IN DENYING [APPELLANT’S] PCRA PETITION
         WITHOUT RECKONING WITH THE MERIT AND LEGITIMACY
         OF THE ISSUES RAISED WHERE THE ARRESTING OFFICER
         CHRISTOPHER A. CORTAZZO WAS TERMINATED FROM
         THE POLICE DEPARTMENT BY MAYOR VAUGHN D.
         SPENCER OF THE CITY OF READING FOR SEVERAL POLICE
         MISCONDUCTS AND VIOLATION OF THE DEPARTMENT

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       RULES AND ETHICS AFTER FAILING A “FIT FOR DUTY
       EXAM,” AND WHERE BOTH OFFICERS CORTAZZO AND
       [MENGES] ADMITTED TO HAVING GIVEN RESPECTIVELY
       INCONSISTENT TESTIMONY BECAUSE OF THE LAPSE OF
       TIME BETWEEN THE DAY OF THE INCIDENT AND THE DAY
       OF THE TRIAL AND INACCURATE TESTIMONY OF HIS
       FAILURE TO CHECK THE POLICE REPORT BEFORE GETTING
       ON THE STAND TO TESTIFY[?]

       (2) WHETHER [APPELLANT] WAS DENIED HIS RIGHT TO A
       FAIR AND IMPARTIAL [JURY TRIAL] WHERE PROSPECTIVE
       JUROR NO. 16 AND HER HUSBAND WERE FRIENDS AND
       NEIGHBORS WITH THE PROSECUTING ATTORNEY WHO
       ALSO STATED THAT SHE COULD NOT BE FAIR[,] AND HAD
       QUESTIONS OF GUILT OR INNOCENCE ON HER BEFORE
       AND DURING THE TRIAL[?]

       (3) WHETHER THE PCRA COUNSELS’ [TURNER/FINLEY]
       LETTERS WERE BOTH BOGUS AND IN CONTRADICTION
       WITH     COMMONWEALTH        V.     FINLEY     AND
       COMMONWEALTH V. TURNER, WHERE COUNSELS
       FAILED [NOT ONLY] TO INVESTIGATE [THE] WITHIN
       MATTER BUT ALSO FAILED TO CONSIDER THE MERIT OF
       THE ISSUES RAISED IN [APPELLANT’S] PCRA PETITION[?]
       THUS, THESE ISSUES WERE SUPPORTED BY THE RECORD
       AND FILES KEPT BY THE OFFICE OF THE CLERK OF
       COURTS OF BERKS COUNTY, PENNSYLVANIA.

       (4) WHETHER THE ARRESTING OFFICER CORTAZZO
       VIOLATED THE COURT SEQUESTRATION ORDER BY
       TALKING TO AND DISCUSSING THE CASE WITH THE
       PROSECUTING ATTORNEY MR. BOYER AND OTHER
       OFFICERS/WITNESSES YET TO TESTIFY WHILE HE WAS
       ORDERED BY THE COURT NOT TO [DO] SO[?]
       CONSEQUENTLY, THE DENIAL OF [APPELLANT’S] MOTION
       FOR MISTRIAL CONCERNING THIS VIOLATION OF COURT
       ORDER WAS ITSELF A VIOLATION OF [APPELLANT’S]
       RIGHT TO A FAIR AND IMPARTIAL TRIAL. AND WHETHER
       THE REFUSAL TO [DISCLOSE] THE VIDEO RECORD FROM
       THE POLICE DASHBOARD CAMERA AS REQUESTED BY
       [APPELLANT] WAS A VIOLATION OF BRADY LAW [AND]
       THE   AFOREMENTIONED     VIOLATIONS   WERE   NOT
       HARMLESS[?]


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(Appellant’s Brief at 3).3

        As a preliminary matter, to be eligible for relief under the PCRA, the

petitioner must plead and prove his conviction resulted from one or more of

the grounds set forth in 42 Pa.C.S.A. § 9543(a)(2)(i-viii). Commonwealth

v. Zook, 585 Pa. 11, 887 A.2d 1218 (2005). “Generally, an appellant may

not raise allegations of error in an appeal from the denial of PCRA relief as if

he were presenting the claims on direct appeal.” Commonwealth v. Price,

876 A.2d 988, 995 (Pa.Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d

1184 (2006), cert. denied, 549 U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179

(2006); Commonwealth v. Bell, 706 A.2d 855 (Pa.Super. 1998), appeal

denied, 557 Pa. 624, 732 A.2d 611 (1998).

        Here, Appellant’s second and fourth issues are waived for purposes of

review, because he offers them as if he were presenting the claims on direct

appeal. See Price, supra. See also 42 Pa.C.S.A. § 9544(b) (stating issue

is waived if petitioner failed to raise it and it could have been raised before

trial, at trial, during unitary review, or in prior proceeding under PCRA).

Therefore, we will give issues two and four no further attention.

        In his remaining issues, Appellant argues his discovery of a newspaper

article dated December 19, 2014, alerted him that the City of Reading had

fired Officer Cortazzo for unbecoming conduct.       Appellant maintains this

____________________________________________


3   Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).



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“after-discovered evidence,” along with Officers Cortazzo’s and Menges’

“admissions” of inconsistent testimony, would result in a different verdict

because the officers’ testimony was the only information used at trial to

establish Appellant’s guilt.        Appellant contends he could use this new

evidence beyond impeachment purposes to show the officers had falsified

reports and violated ethical rules.            Appellant asserts both PCRA counsel

rendered ineffective assistance and their respective Turner/Finley letters

reveal they did not properly investigate these matters. Appellant claims he

asked his first PCRA counsel to raise the issue of Officer Cortazzo’s

termination, but she refused and withdrew; and Appellant’s second PCRA

counsel also withdrew, even though he knew about the “after-discovered

evidence.”      Appellant complains he was prejudiced by PCRA counsel’s

ineffective assistance when they ignored his “after-discovered evidence,”

which could have resulted in a different outcome.4 Appellant concludes he is

entitled to PCRA relief in the form of a new trial. We disagree.

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

examining whether the record supports the court’s determination and

____________________________________________


4  Where PCRA counsel has sought to withdraw from representation, the
petitioner must preserve any challenge to PCRA counsel’s ineffectiveness in
a response to counsel’s no-merit letter or, if applicable, the court’s Rule 907
notice. See Commonwealth v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875, 880
n.4 (2009). In the present case, Appellant preserved these ineffectiveness
of PCRA counsel challenges in his responses to the respective Turner/Finley
letters.



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whether the court’s decision is free from legal error.             Commonwealth v.

Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,

959 A.2d 319 (2008). This Court grants great deference to the findings of

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

Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007). Credibility resolutions are within

the province of the PCRA court when a hearing is held on the petition.

Commonwealth v. Rathfon, 899 A.2d 365 (Pa.Super. 2006). If the record

supports a PCRA court’s credibility decision, it is binding on the appellate

court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

      The        law   presumes   counsel     has   rendered   effective    assistance.

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

the traditional analysis, to prevail on a claim of ineffective assistance of

counsel,     a    petitioner   bears   the   burden   to   prove    his   claims   by   a

preponderance of the evidence.           Commonwealth v. Turetsky, 925 A.2d

876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).

The petitioner must demonstrate: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable strategic basis for the asserted 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.   Id.       See also Commonwealth v. Kimball, 555 Pa. 299, 724

A.2d 326 (1999). “A reasonable probability is a probability that is sufficient


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to   undermine    confidence   in   the      outcome   of   the   proceeding.”

Commonwealth v. Spotz, 624 Pa. 4, 34, 84 A.3d 294, 312 (2014)

(quoting Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291

(2010)). “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. Steele, 599 Pa. 341, 360, 961 A.2d 786,

797 (2008).

     “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.”

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 [an appellant] demonstrates
        that counsel’s chosen course of action had an adverse
        effect on the outcome of the proceedings. The [appellant]
        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

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        confidence in the outcome. In [Kimball, supra], we held
        that a criminal [appellant] 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) (internal citations and quotation marks omitted).

     Further, “to succeed on an allegation of…counsel’s ineffectiveness…a

post-conviction petitioner must, at a minimum, present argumentation

relative to each layer of ineffective assistance, on all three prongs of the

ineffectiveness standard….”   Commonwealth v. D’Amato, 579 Pa. 490,

500, 856 A.2d 806, 812 (2004) (internal citations omitted).            “[A]n

undeveloped argument, which fails to meaningfully discuss and apply the

standard governing the review of ineffectiveness claims, simply does not

satisfy [the petitioner’s] burden of establishing that he is entitled to any

relief.” Commonwealth v. Bracey, 568 Pa. 264, 273 n.4, 795 A.2d 935,

940 n.4 (2001).

     Instantly, Appellant’s argument that PCRA counsel were ineffective for

failure to pursue further Appellant’s “after-discovered evidence” claim does

not meet the standard governing ineffectiveness claims.       Here, Appellant

devoted his entire argument to how the purported “after-discovered

evidence” would satisfy the first prong of the Pierce test.    Appellant then

simply concluded PCRA counsel rendered ineffective assistance, which

prejudiced Appellant.   Appellant failed to present argument as to how the

second and third prongs of the Pierce test were also met with respect to

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PCRA counsel.     See D’Amato, supra; Bracey, supra.                See also

Commonwealth v. Jones, 571 Pa. 112, 128, 811 A.2d 994, 1003 (2002)

(stating claims of ineffective assistance of counsel are not self-proving).

Thus, Appellant did not establish he is entitled to relief on the grounds

asserted.

     Moreover, regarding Appellant’s underlying claims of “after-discovered

evidence,” the PCRA court reasoned as follows:

        In the case sub judice, [Appellant] relies on the ground
        that there was new evidence showing that there was false
        testimony of two police officers at [Appellant’s] trial. Both
        officers testified under questioning by [Appellant’s] counsel
        at the PCRA hearing that they had never stated at a civil
        trial that their testimony in the criminal trial was false.
        Therefore, this issue is without merit because [Appellant]
        has not proved that the officers lied at his criminal hearing.

        Furthermore, there is no evidence that Officer Cortazzo
        was terminated by the Reading Police Department instead
        of retiring from the force. … [Appellant’s] claim that his
        past PCRA counsel should have brought to the court’s
        attention that Officer Cortazzo was terminated has no
        arguable merit.     [Appellant] has no proof as to this
        allegation. Therefore, he does not meet the first prong of
        the test, and any claim of ineffectiveness of counsel fails.
        Even assuming that Officer Cortazzo had been terminated,
        [Appellant] cannot show how that termination impacted
        [Appellant’s] case.

(PCRA Court Opinion, filed September 16, 2016, at 3-4).            The record

supports the PCRA court’s credibility resolutions and its conclusion that

Appellant’s underlying claims likewise lacked arguable merit. See Rathfon,

supra; Dennis, supra. Accordingly, we affirm.

     Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2017




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