J-S41038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JOANILEE MONTANEZ                          :
                                               :
                       Appellant               :      No. 1530 EDA 2017

                   Appeal from the PCRA Order April 11, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009567-2010


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                           FILED AUGUST 15, 2018

        Appellant, Joanilee Montanez, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which denied his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court accurately set forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.2

        Appellant raises the following issues for our review:

           DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT’S
           PCRA PETITION WHERE PCRA COUNSEL RENDERED
           INEFFECTIVE [ASSISTANCE] FOR NOT ADVANCING A
           MERITORIOUS CLAIM THAT DIRECT APPEAL COUNSEL WAS
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2The PCRA court also granted counsel’s motion to withdraw as counsel on
April 11, 2017.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41038-18


         INEFFECTIVE FOR NOT RAISING ON APPEAL THAT THE
         TRIAL COURT [ERRONEOUSLY] ADMITTED HEARSAY
         IDENTIFICATION TESTIMONY OF SEVERAL WITNESSES.

         DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT’S
         PCRA PETITION WHERE PCRA COUNSEL HAD RENDERED
         INEFFECTIVE [ASSISTANCE] FOR FAILING TO ADVANCE A
         MERITORIOUS CLAIM THAT DIRECT APPEAL COUNSEL WAS
         INEFFECTIVE FOR NOT RAISING ON APPEAL THAT TRIAL
         COUNSEL WAS INEFFECTIVE FOR: (A) FAILING TO OBJECT
         TO PREJUDICIAL ARGUMENTS[;] (B) FAILING TO OBJECT
         TO THE ADMISSION OF INFLAMMATORY PHOTOGRAPHS[;]
         (C) FAILING TO OBJECT TO THE TRIAL COURT’S DECISION
         NOT TO REMOVE AN UNTRUTHFUL JUROR [DUE] TO HIS
         NATIONALITY.

         DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT’S
         PCRA PETITION WHERE PCRA COUNSEL FAILED TO AMEND
         AND CURE [THE] PETITION.

(Appellant’s Brief at 6).

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

examining whether the record evidence supports the court’s determination

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

Ford, 947 A.2d 1251 (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 record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.


                                     -2-
J-S41038-18


Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997).

        After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Rose Marie

DeFino-Nastasi, we conclude Appellant’s issues merit no relief.            The PCRA

court opinion comprehensively discusses and properly disposes of the

questions presented. (See PCRA Court Opinion, filed September 11, 2017, at

3-13) (finding: (1) no hearsay was elicited during testimony of Angela Ledino

because she was impeached only with her prior statement that recounted

statement Appellant had made to her; Appellant also challenges testimony of

Miriam Acevedo and Zeleica Diaz, recounting what witness David Montes told

them, as alleged hearsay; trial counsel objected to admission of those

statements, but court overruled objection and appellate counsel did not

challenge court’s ruling on appeal; specifically, Mr. Montes testified he was

present when Appellant shot Decedent, but Mr. Montes did not report homicide

until he was arrested on drug offense over one month later; after Mr. Montes

gave statement about homicide, Commonwealth charged Mr. Montes with

conspiracy, but those charges were ultimately dismissed; at Appellant’s trial,

defense offered theory that Mr. Montes’ statement to detectives about

Appellant’s involvement in homicide was fabricated to get Mr. Montes out of

trouble; defense counsel thoroughly cross-examined Mr. Montes about his

delay    in   reporting   homicide;   to    rehabilitate   Mr.   Montes’   credibility,

Commonwealth presented testimony from Miriam Acevedo and Zeleica Diaz,


                                           -3-
J-S41038-18


that Mr. Montes had told them Appellant shot Decedent, as early as night of

incident and two weeks later; statements at issue were non-hearsay because

they were not offered for truth of matter asserted, i.e., that Appellant shot

Decedent; rather, Commonwealth elicited testimony from witnesses, per Rule

613(c), to rehabilitate Mr. Montes’ testimony from attack of recent fabrication;

moreover, even if court’s admission of statements at issue was erroneous,

error was harmless, in light of overwhelming evidence of identification of

Appellant as shooter by other eyewitnesses; appellate counsel cannot be

deemed ineffective for failing to raise meritless claim on appeal, and PCRA

counsel similarly was not ineffective for declining to pursue it; (2) at trial,

Commonwealth admitted photo of crime scene that depicted Decedent’s body

covered by sheet with blood on it; photo was shown to give overall view of

crime scene; fact that photo depicted blood does not necessarily render it

gruesome and inflammatory; court would not have granted Appellant mistrial

had trial counsel moved for mistrial on that basis; Commonwealth used photo

of overall crime scene so jury could envision distance, lighting, and ability of

eyewitnesses to make their observations; as this issue lacks merit, all of

Appellant’s   related   ineffectiveness   claims   fail;   in   opening   statement,

prosecutor stated evidence would show Appellant was guilty of crimes

charged, which did not constitute personal opinion; prosecutor’s comments

during closing arguments were oratorical flair, illustrating that jurors must be

true to their “solemn duty” to do justice even if that task is difficult;


                                      -4-
J-S41038-18


prosecutor’s     comments       were    not    improper,   and   Appellant’s   related

ineffectiveness claims fail; during trial, one juror was almost one hour late for

court and delayed proceedings; juror initially said he had been in accident;

upon further questioning, juror admitted he had overslept; court did not

remove juror but stated if juror showed up late on following day, court would

remove him; juror was on time for duration of proceedings; court had

insufficient cause to remove juror; thus, Appellant’s related ineffectiveness

claims fail; (3) Appellant’s claim as presented in concise statement is too

vague for court to ascertain and address Appellant’s issue).3 Accordingly, we

affirm on the basis of the PCRA court’s opinion.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/18




____________________________________________


3 See Commonwealth v. Hansley, 24 A.3d 410 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (explaining concise statement that
is too vague to allow court to identify issue raised on appeal is functional
equivalent of no concise statement at all; if concise statement is too vague,
issue is waived on appeal).

                                           -5-
                                                                                       Circulated 07/25/2018 01:56 PM




                                                                                                                            FILED
                   IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
                                                                                                                 SEP 112017
                                    CRIMINAL TRIAL DIVISION                                             Offlce of Judicial Aecom
                                                                                                         AIJpealS/Post Trial
COMMONWEALTH OF PENNSYLVANIA                                          CP-51-CR-0009567-2010

               v                                                      1530 EDA 2017

JOANILEE MONTANEZ

                                                                          51-CR-li009(;67-2010p, O
                                                                     CP                        Comm   v Monranez Joan,lee
                                                                .t                            nion




                                                                                     lll/111/IIII
                                                OPINION

Rose Marie Defino-Nastasi, J.                                              IIIWll//l
                                                                               8000031781
                                      PROCEDURAL HISTORY

       On June 20, 2013, Petitioner was found guilty after a jury trial, presided over by the

Honorable Rose Marie DeFino-Nastasi, of First Degree Murder, 18 Pa CS§ 2502(a), as a felony

of the first degree, Violation of the Uniform Firearms Act, 18 Pa.C.S. § 6106, as a felony of the

third degree, Violation of the Uniform Firearms Act, 18 Pa CS.§ 6108, as a misdemeanor of the

first degree, and Possession of an Instrument of Crime (PIC), 18 Pa.C S § 907, as a misdemeanor

of the first degree. The same day he was sentenced to life without possibility of parole for the

First Degree Murder Conviction and a concurrent 3.5 to 7 years for the VUFA 6106 conviction.

No further penalties were imposed for the VUFA 6108 and PIC convictions.

       On July I, 2013, Petitioner filed a timely post-sentence motion, challengmg the weight

and sufficiency of the evidence presented at trial, claiming that the sentence for the VUF A 6106

conviction was outside of the sentencing guidelmes, and requesting that a new trial be granted

       On July 24, 2013, Petitioner's post-sentence motion was denied without a hearing.

       On August 22, 2013, Petitioner filed a direct appeal.

       On February 9, 2015, the Superior Court affirmed the judgement of sentence.
       On September 28, 2015, the Pennsylvania Supreme Court denied allocator.

       On January 20, 2016, Petitioner files this timely, instant.pro se, PCRA petition.

       On January 30, 2017, PCRA counsel James Lammendola, Esquire, filed a Finley letter of

no-merit and motion to withdraw as counsel.

       On February 3, 2017, Petitioner filed a prose response to PCRA counsel's Finley letter.

       On February 28, 2017, Petitioner filed apr_o se amended PCRA petition.

       On March 15, 2017, this Court filed a 907 Notice to Dismiss, declaring that the PCRA

petition would be formally dismissed on April 11, 2017.

       On March 31, 2017, Petitioner filed a pro se response to the 907 notice.

       On April 1 \, 2017, the instant PCRA petition was formally dismissed by the PCRA court.

       On April 28, 2017, Petitioner filed a notice of appeal with the Superior Court.

       On May 26, 2017, Petitioner filed a Rule l 925(b) Statement of 6.;rovs Complained of on

Appeal, pursuant to an Order of the Court. The claims are as follows (they have been reworded

for ease of disposition):

       I.      The court erred in dismissing Petitioner's PCRA petition where PCRA counsel

               rendered ineffective assistance of counsel for failing to develop a meritorious

                claim that appellate counsel was ineffective for failing to raise on appeal that the

                trial court erred in admitting hearsay identification testimony of several witnesses.

        II.     The court erred in dismissing Petitioner's PCRA petition where appointed PCRA

                counsel rendered ineffective assistance of counsel for failing to develop a

                meritorious claim that trial counsel was ineffective for not objecting to the

                admission of inflammatory photographs.
       III.   The court erred in dismissing Petitioner's PCRA petition where PCRA counsel

               rendered ineffective assistance of counsel for failmg to develop a meritorious

               claim that trial counsel was ineffective for not objecting to prejudicial and

               inflammatory remarks made by the Commonwealth during opening and closing

               remarks.

       IV.     The court erred in dismissing Petitioner's PCRA petition where PCRA counsel

               was ineffective for failmg to develop a meritorious claim that the trial court

               deprived Petitioner of his right to a fair and impartial trial, where the court caught

               one of the jurors in a lie yet refused to remove him because he was Hispanic

       V.      The court erred in dismissing PetitJ.oner's PCRA petition where PCRA counsel

               rendered ineffective assistance of counsel for failing to amend PCRA petition

               where he noticed a slight defect in it.

                                           ANALYSES

       All of Petitioner's claims allege ineffective assistance of counsel The law provides that

under the P.C RA., counsel is presumed to be effective and defendant bears the burden of

establishing ineffectiveness Com v Pierce, 527 A.2d 973 (Pa. 1987). In order to establish that

trial counsel's representation was deficient, defendant must prove that his underlying claim has

arguable ment and that counsel's conduct lacked any reasonable basis. Com v. Durst, 559 A.2d

504, 505 (Pa. 1989); Com v Davis, 541 A2d 315, 318 (Pa. 1988). Further, a defendant cannot

be granted any relief absent the additional showing that counsel's performance adversely

affected the outcome of the trial. In assessing a claim of ineffectiveness, when it is clear that

appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis

alone, without a determination of whether the first two prongs have been met. Com v
Travaglta, 661 A.2d 352, 357 (Pa 1995). Counsel cannot be ineffective for failing to pursue a

meritless claim. Com v Loner, 836 A.2d 125, 132 (Pa Super 2003)(en bane), appeal denied,

852 A.2d 311 (Pa 2004).

       Petitioner raises a number of layered ineffective assistance of counsel claims - claims that

trial or appellate and PCRA counsel were ineffective. In a layered ineffective assistance of

counsel claim, PCRA counsel is not ineffective for failing to raise an ineffective assistance of

counsel claim where the underlying claim lacks merit. As the S l.ll?f'�Court has explained:

       "To prevail on a claim of appellate counsel's ineffectiveness for failure to raise an

       allegation of trial counsel's ineffectiveness, a PCRA petitioner must present a 'layered'

       claim, i.e., he or she must present argument as to each of the three prongs of the Pierce

       test for each layer of allegedly ineffective representation. To establish the arguable merit

       prong of a claim of appellate counsel ineffectiveness for failure to raise a claim of trial

       counsel ineffectiveness, the petitioner must prove that trial counsel was ineffective under

       the three-prong Pierce standard. If the petitioner cannot prove the underlying claim of

       tnal counsel ineffectiveness, then petitioner's derivative claim of appellate counsel

       ineffectiveness of necessity must fail, and it is not necessary for the court to address the

       other two prongs of the Pierce test as applied to appellate counsel."

Com v Paddy, 15 A.3d 431, 443 (Pa. 2008).

       The arguable merit prong regarding PCRA counsel's ineffectiveness may only be

satisfied by pleadmg and proving all three elements of the ineffective assistance of counsel test

regarding the underlying allegation of counsel's ineffectiveness. Com v Dennis, 950 A.2d 945,

954 (Pa 2008).
                                                 ISSUE I

               The court erred in dismissing Petitioner's PCRA petition where PCRA

               counsel rendered ineffective assistance of counsel for failing to develop a

               meritorious claim that appellate counsel was ineffective for failing to raise on

               appeal that the trial court erred in admitting hearsay identification testimony

               of several witnesses.

       PCRA counsel did evaluate Petitioner's claim that appellate counsel was ineffective for

failing to challenge on appeal the trial court's rulings admitting hearsay statements made to

several witnesses by witness David Montes.

       The hearsay in question was elicited during the testimony of Miriam Acevedo and

Zeleica Diaz No hearsay was ehcited during the testimony of Angela Ledino since she was only

impeached with her prior statement which recounted a statement made to her by Petitioner

himself and not by David Montes.

        Miriam Acevedo testified that witness David Montes told her approximately two weeks

after the murder that it was Petitioner who shot the decedent. N .T. 06/19/13 at p. 22. Likewise,

Zeleica Diaz gave a statement to detectives that she saw Montes and Petitioner running after

hearing shots, saw Petitioner holding a gun, and Montes told her that Petitioner shot the

decedent. Tnal counsel did object to the admission of these statements, however the court

overruled the objection and appellate counsel did not challenge the ruling on appeal. PCRA

counsel analyzed the issue and found that, although it had merit, Petitioner was not prejudiced

because of the overwhelming amount of evidence notwithstanding the statements against

Petitioner.
        Hearsay is an out of court statement offered to prove the truth of the matter asserted.

Pa.R.E. 80l(c) The statements admitted were not offered for the truth of the matter (i.e. that

Petitioner shot the decedent). There was already ample eyewitness testimony presented to

establish that fact. The statements were admitted pursuant to Pa.R.E. 613 in order to rehabilitate

Montes's testimony from an attack of recent fabrication.

        Montes testified that he was present when Petitioner shot the decedent on October 31st

2009. However, Montes did not report that he witnessed the homicide to authorities until he was

arrested on December 9, 2009, on a drug offense. After Montes gave a statement to Homicide

detectives, he was then arrested as a conspirator to the homicide. Ultimately, Montes' charges

were dismissed for lack of evidence at the preliminary hearing. In opening arguments, the

defense told the jury that Montes only came forward and identified Petitioner as the shooter after

he himself was arrested and became a suspect In support of its theory, the defense cross-

examined Montes about waiting over a month, until he was arrested, before mentioning that

Petitioner did the shooting. It was the defense's contention that Montes' statement to homicide

detectives was fabricated based on his motive to get himself out of trouble.

       In response, the Commonwealth presented statements made by Montes to Acevedo and

Diaz, identifying Petitioner as the shooter as early as the night of the incident and two weeks

thereafter, to rehabilitate Montes' credibility. Pa. R. E. 613(c) provides that prior consistent

statements are admissible for the purpose of rehabihtating a witness whose credibility has been

attacked by an express or implied charge of " fabrication, bias, improper influence or motive, or

faulty memory." Com. v Baker, 2008 Pa. Super. 288, 963 A2d 495 (2008); Com v Hunzer,

2005 Pa. Super. 13, 868 A2d 498 (2005). Pa. R. E. 613(c)(l) is also specific about the timing of

consistent statements offered to rebut a charge of fabrication, bias , improper influence or
motive. The statement must have been made "before that which has been charged existed or

arose" The rationale is that only a statement that predates the motive to falsify or other problem

can rebut it. In the instant matter the statements by Montes to Acevedo and Diaz were made

prior to his arrest on the drug and homicide charges and before he would have had a motive to

fabricate.

        Furthermore, assuming, arguendo, that one could find that the statements were hearsay,

the admission of the statements would be harmless error. See Com v Hicks, 156 A.3d 1114,

1149- l I 40 (Pa. 201 7), (where it was held that "harmless error exists where: (1) the error did not

prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence

was merely cumulative of other untamted evidence; or (3) the properly admitted and

uncontradicted evidence of gum was so overwhelming that the prejudicial effect of the error by

comparison could not have contributed to the verdict) and Com v Allshouse, 614 Pa 229, 36

A.3d 163, 182 (Pa. 2012) (where the doctrine of harmless error was held to be a "technique of

appellate review designed to advance judicial economy by obviating the necessity for a retrial

where the appellate court is convinced that a trial error was harmless beyond a reasonable

doubt."), There was overwhelming evidence of identification in addition to the statements.

Newell Crespo, Brian Ellington and Montes all identified Petitioner as the shooter.

        Therefore, appellate counsel cannot be found ineffective for failing to raise a mentless

 issue and as such PCRA counsel cannot be found ineffective.

                                                  ISSUE II

                The court erred in dismissing Petitioner's PCRA petition where PCRA

                counsel rendered ineffective assistance of counsel for failing to develop a
                     meritorious claim that trial counsel was ineffective for not objecting to the

                     admission of inflammatory photographs.

         PCRA counsel did analyze the issue of whether trial counsel was ineffective for not

objecting to the admission of certain inflammatory photos. Counsel correctly found that the

issue lacked merit

         There was a photo of the scene presented depicting the decedent's body covered with a

sheet that had a blood stain on it. See Exhibit C22�9, attached hereto and marked as 'Exhibit A.'

The photo was actually shown to give an overall view of the crime scene. The photo was not

inflammatory simply because it depicted blood. It has been held in Pennsylvania that in a

homicide tnal the presence of the victim's blood in a photograph does not necessarily render a

photograph inflammatory. Com v Rivers, 537 Pa. 394, 644 A.2d 710 (Pa 1994) It has also

been held that a photograph is not inflammatory because it depicts the murder victim. Com v

Saranchak, 675 A.2d 268, 275 (Pa. 1996).

          Trial counsel would not have been granted a mistrial had he moved for one A mistrial is

"an extreme remedy ... that must be granted only when an incident is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial " Com v Vazquez, 617 A.2d

786,787-88 (Pa. Super. 1992). The photo displayed was not gruesome nor was there a large

amount of blood on the sheet The photo depicted the overall view of the crime scene to enable

the jury to envision distance, lighting, and the ability of eyewitnesses to make their observations.

The body of the decedent had not yet been removed and as such was in the middle of the cnme

scene

          Since this issue has no merit, tnal counsel cannot be found ineffective for failing to move

f'nr"' m,c;,tri�I   and as such PCRA counsel cannot be found ineffective.
                                                ISSUE III

               The court erred in dismissing Petitioner's PCRA petition where PCRA

               counsel rendered ineffective assistance of counsel for failing to develop a

               meritorious claim that trial counsel was ineffective for not objecting to

               prejudicial and inflammatory remarks made by the Commonwealth during

               opening and closing remarks.

       PCRA counsel did correctly analyze the issue of trial counsel's ineffectiveness for not

objecting to prejudicial and inflammatory remarks made by the prosecutor during opening and

closing arguments. Petitioner claims that the prosecutor voiced his personal opimon that

Petitioner was guilty dunng openmg and closing arguments. As to opening arguments, the

record belies this claim. The record shows that the prosecutor argued that "the evidence would

show" that Petitioner was guilty of the crimes charged.

       Counsel's remarks to the jury may contain fair deductions and legitimate inferences from

the evidence presented during the testimony. The prosecutor may always argue to the Jury that

the evidence establishes the defendant's guilt, although a prosecutor may not offer his personal

opinion as to the guilt of the accused either in argument or in testimony from the witness stand

Nor may he or she express a personal belief and opinion as to the truth or falsity of evidence of

defendant's guilt, including the credibility of a witness Com v Chmiel, 777 A.2d 459, 466 (Pa.

Super. 2001)> appeal denied, 788 A 2d 372 (Pa 2001).
       As to closing argument, the prosecutor argued to the jury at the very end of his closmg

argument that it is hard to stand up and announce a verdict of guilt but that it is a solemn duty.

To make his point with oratorical flair the prosecutor said the following·

       "Folks, this is not a whodunit. It never has been, 1t never will be and it is not today but I

       will not stand up and pretend it is a pleasant thing to find somebody guilty of first degree

       murder. It is not. It is a duty and it is a solemn duty and when the time comes, all I ask rs

       that you stand up, have the courage in your heart to stand up for what is right, stand up

       for what is just and you say to the Defendant, as I do, Joanilee Montanez, sir, you are

       guilty of the first degree murder of Bryan Jubilee."

N.T 06/20/13 at p. 150.

       "Generally, a prosecutor's arguments to the jury are not a basis for the granting of a new

trial unless the unavoidable effect of such comments would be to prejudice the jury. forming in

their minds fixed bias and hostility towards the accused which would prevent them from properly

weighing the evidence and rendering a true verdict." Com v. Jones, 546 Pa. 161, 683 A.2d 1181,

1199 ( 1996) (citation omitted). A prosecutor enjoys reasonable latitude during closing

arguments, and may advocate with force, vigor, and oratorical flair. Com v Brown, 55 l Pa.

465, 711 A 2d 444, 454 (1998) (citauon omitted). Nonetheless. this latitude is not unrestrained.

Argument must be based upon matters in evidence, or upon the legitimate inferences that can be

drawn from that evidence Com v. Chester, 526 Pa. 578, 587 A.2d 1367, 1377 (1991). "We

must consider the challenged statements within the context in which they were offered. We will

not view those statements in a vacuum." Com. v Weiss, 565 Pa. 504, 776 A.2d 958, 968 (2001)
        Clearly, this comment was not the prosecutor's attempt to personally vouch for the

evidence or to prejudice the jury against Petitioner, but instead was a rather theatrical exhibition

to the Jury to illustrate that they must be true to their oath even if it is difficult

        Since this issue has no merit, trial counsel cannot be found ineffective for failure to object

to the remark. As such, PCRA counsel cannot be found ineffective.




                                                 Issue IV

                  The court erred in dismissing Petitioner's PCRA petition where PCRA

                  counsel was ineffective for failing to develop a meritorious claim that the trial

                  court deprived Petitioner of his right to a fair and impartial trial, where the

                  court caught one of the jurors in a lie yet refused to remove him because he

                  was Hispanic.

        PCRA counsel did correctly analyze the issue of trial counsel's ineffectiveness for failure

to request removal of a juror who gave differing accounts of why he was late for court.

        The Juror in question was almost an hour late for court, thereby delaying the proceedings.

The information the Court received from the court officer was that the juror indicated he had

been in an accident. The Court then questioned the juror, who at first said there was an incident

on the highway and then that he overslept. The Court did not delve into the differing versions

because the Court decided to keep the juror and did not want the juror to feel any animosity

toward the Court or the attorneys.

        THE COURT: "The problem that we have with him, he, basically.just lied. I didn't want

        t" opt   into it because obviously he has to make a decision in this case. I have not
       removed him. I don't want to upset him, so that it might affect his decision. So I think

       what we will do is give him another chance. If he is late tomorrow, ten minutes late,

       that's it, he is out and I will take care of any contempt or anything like that."

N.T 06/19/13 atp. 8.

       "The discharge of a juror is within the sound discretion of the trial court. Absent a

palpable abuse of that discretion, the court's determination will not be reversed." Com. v

Jacobs, 639 A2d 786, 790 (Pa 1994). In Saxton, our Supreme Court held that: "While the

decision to remove a juror because of inability to perform the usual function of a Juror is within

the sound discretion of the tnal Judge, the exercise of this judgment must be based upon a

sufficient record of competent evidence to sustain removal." Com v Saxton, 353 A.2d 434, 436

(Pa 1976), see also Bruckshaw v Frankford Hosp of Ctty of Philadelphia, 58 A.3d 102, 106

(Pa. 2012) (recognizing "established precedent that once a principal juror is seated and sworn,

that juror cannot be removed without good cause on the record")

       There was not sufficient good cause to remove this juror. The juror was late. He was not

completely forthright regarding the reason at first, but then admitted he overslept and promised

to be on time (which he was for the duration of the trial).

       Trial counsel had no basis to request removal of the juror Therefore trial counsel cannot

be found ineffective and thus it follows that PCRA counsel cannot be found ineffective.

                                             ISSUEV

               The court erred in dismissing Petitioner's PCRA petition where PCRA

               counsel rendered ineffective assistance of counsel for failing to amend PCRA

               petition where he noticed a slight defect in it.
       The Court cannot ascertain the meaning of Petitioner's claim. This Court is unaware of

any defect in Petitioner's prose petition.

                                             CONCLUSION

       Based on the foregoing, the court's denial of the PCRA petition should be affirmed.



                                                   By the Court:
EXHIBIT

  'A'
Commonwealth v. Joanilee Montanez
CP-51-CR-0009567-2010
Opinion

                                        Proof of Service

I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and m
the manner indicated below, which service satisfies the requirements of Pa.R.Crirn.P. 114:



Defendant:                    Joamlec Montanez, LB5775
                              SCI Forest
                              P.O. Box 945
                              286 Woodland Drive
                              Marienville, PA 16239

Type of Service: () Personal () First Class Mail (x) Other, Please Specify: Certified

District Attorney:             Philadelphia District Attorney's Office
                               PCRA Unit
                               Widener Bldg
                               3 South Penn Square
                               Philadelphia, PA 19107

 Type of Service: ( ) Personal ( ) Fust Class Mail (x) Inter-Office




  Date: 09/11/17
                                                     �-
                                        Michael G. Zaleski
                                                                      . Rose Mane Defino-Nastasi
