J-S84027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOSE LUIS GONZALEZ, JR.                    :
                                               :   No. 1368 MDA 2017
                       Appellant

                   Appeal from the PCRA Order August 1, 2017
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0000175-2013


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                               FILED APRIL 02, 2018

        Jose Luis Gonzalez, Jr., appeals from the order, entered in the Court of

Common Pleas of Lebanon County, denying him relief on his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-46.

After review, we affirm.

        On July 11, 2013, a jury convicted Gonzalez of possession with intent to

deliver,1 possession of a controlled substance,2 and possession of drug

paraphernalia.3 At trial, Nicholas Sidelnick, Esquire, represented Gonzalez.

On August 28, 2013, the trial court sentenced Gonzalez to an aggregate term
____________________________________________


1   35 P.S. § 780-113(a)(30).

2   35 P.S. § 780-113(a)(16).

3   35 P.S. § 780-113(a)(32).
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of one to five years’ incarceration in a state correctional institution.4 Gonzalez

filed timely post-sentence motions, which the trial court denied on January 3,

2017. Gonzalez timely appealed, and on February 2, 2015, this Court affirmed

his judgment of sentence.

        On November 12, 2015, Gonzalez filed a pro se PCRA petition, his first;

however, his petition was misfiled and mislaid and did not come to the PCRA

court’s attention until early 2017. On August 1, 2017, the PCRA court held an

evidentiary hearing. The same day, the PCRA court denied Gonzalez’s PCRA

petition. This timely appeal follows. Both Gonzalez and the PCRA court have

complied with Pa.R.A.P. 1925(b). On appeal, Gonzalez raises the following

issues for our review:

        1. Whether [t]rial [c]ounsel [] was ineffective for failing to
        interview witnesses on [Gonzalez’s] behalf regarding the illegal
        search and seizure?

        2. Whether [t]rial [c]ounsel [] was ineffective for failing to file a
        [s]uppression [m]otion based on the illegal search and seizure?

Brief of Appellant, at 4.

        We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).        We give no deference, however, to the court’s legal
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4   See 42 PA.C.S.A. § 9762(b).

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conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      To be eligible for relief pursuant to the PCRA, Gonzalez must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S.A. § 9543(a)(2). Gonzalez

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An allegation of

error “is waived if the petitioner could have raised it but failed to do so before

trial, at trial . . . on appeal or in a prior state post[-]conviction proceeding.”

42 Pa.C.S.A. § 9544(b).

      Instantly, Gonzalez’s claims allege ineffective assistance of trial counsel.

Specifically, Gonzalez claims Attorney Sidelnick failed to pursue and litigate

what Gonzalez characterizes as a suppression issue.          The law presumes

counsel has rendered effective assistance. Commonwealth v. Rivera, 10

A.3d 1276, 1279 (Pa. Super. 2010).             The burden of demonstrating

ineffectiveness rests on appellant. Id. to satisfy this burden, appellant must

plead and prove by a preponderance of the evidence that: (1) his underlying

claim is of arguable merit; (2) the particular course of conduct pursued by

counsel did not have some reasonable basis designed to effectuate his

interest; and (3) but for counsel’s ineffectiveness, there is a reasonable

probability that the outcome of the challenged proceedings would have been

different. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).




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      Gonzalez first avers Attorney Sidelnick failed to contact and/or interview

his mother, Wanda Gonzalez, regarding his arrest and the subsequent search

of his mother’s residence. Failure to call a witness is not per se ineffective

assistance of counsel, for such a decision implicates matters of trial strategy.

Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa. Super. 2008). It is

the post-conviction petitioner’s burden to demonstrate that trial counsel had

no reasonable basis for declining to call a particular person as a witness. Id.

Generally, where 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 interest.

Id.

      Furthermore, failure to investigate and interview a witness, as a basis

for a claim of ineffective assistance of counsel, overlaps with declining to call

a witness, since the petitioner must prove: (1) the witness existed; (2) the

witness was available to testify; (3) counsel knew of, or should have known

of, the existence of the witness; (4) the witness was willing to testify; and (5)

the absence of the testimony was so prejudicial as to have denied the

defendant a fair trial. Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.

Super. 2014).    “[T]o meet the prejudice prong of the ineffectiveness [of

counsel] standard, a 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.” Commonwealth v. Reed, 42 A.3d

314, 319 (Pa. Super. 2012) (internal quotations and citations omitted).

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     At Gonzalez’s evidentiary PCRA hearing, Attorney Sidelnick, during

direct examination, discussed his communications with Wanda Gonzalez:

     [PCRA COUNSEL]: Did you interview his mother about this case?

     [TRIAL COUNSEL]: Yes.

     Q: Why?

     A: Well, a couple [of] reasons. One, like I said, he had other cases
     that were pending, so part of that contact was to possibly get
     clothing for him for trial. But[,] I had called his mother on – it
     would have been in June of 2013. That was to discuss, I believe,
     as to the attempted homicide case regarding whether she[] [had]
     been interviewed for the grand jury proceedings. Some discussion
     there about [Gonzalez’s] brother also being interviewed for the
     grand jury proceedings. During that interview[,] I don’t recall if
     we discussed the search. She had not brought that up.

     I also contacted her again July 10, 2013. The phone number I
     had was [REDACTED]. I had left a message for her, and I don’t
     think she ever returned that call.

     Q: Did you end up filing an omnibus pretrial motion to suppress
     the evidence in the case?

     A: No.

     Q: Why not?

     A: Well, number one, when I spoke with [Gonzalez] he had
     concerns about when the police had come in, but he had
     not said anything about – his mom saying, hey, I didn’t
     consent to this. He had issues about the way they spoke to
     his mother, but not that she had not consented.

     The officer’s report had said in there that she did consent.
     I did tell him, as he testified, that as to that it would be a credibility
     decision for a Judge at a pretrial hearing as to, hey, did his mom
     actually consent or, you know, do you believe what the officers
     are saying, that they talked to her and she gave consent. So I



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     guess in that type of discussion we had there it was, you know,
     discussed somewhat there.

N.T. PCRA Hearing, 8/1/17, at 12-14 (emphasis added).

     Attorney Sidelnick testified that he was aware Gonzalez’s mother may

be a potential witness and had contacted her to discuss Gonzalez’s case.

However, despite attempting to contact Gonzalez’s mother on at least two

separate occasions, she ceased returning his calls.     Additionally, neither

Gonzalez nor Wanda Gonzalez informed Attorney Sidelnick that the police

lacked consent to conduct a warrantless search, which was consistent with the

police report Attorney Sidelnick reviewed.

     Furthermore, there is no indication in the record that Wanda Gonzalez

was willing to testify that she did not give the police consent to search her

home.    Moreover, the PCRA court found credible Attorney Sidelnick’s

testimony that, prior to trial, neither Wanda Gonzalez nor Gonzalez raised a

suppression issue premised on lack of consent.          Commonwealth v.

Johnson, 51 A3d 237, 242-43 (Pa. Super. 2012) (on appeal from denial of

relief under PCRA, the PCRA court’s credibility determinations, when

supported by the record, are binding on the appellate court). Therefore, we

discern no error by the PCRA Court in determining that Gonzalez was not

prejudiced by Sidelnick’s decision not to call Wanda Gonzalez as a witness at

trial. Reed, supra; Fears, supra.

     Gonzalez next avers that Attorney Sidelnick rendered ineffective

assistance of counsel for failing to file a suppression motion as to the

warrantless search of Wanda Gonzalez’s home.

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       Here,    the     PCRA     court     found   credible   Attorney   Sidelnick’s

aforementioned testimony that Gonzalez never advised him to raise a consent

to search issue in a pretrial suppression motion. Rather, Attorney Sidelnick

discussed the possibility that police coerced Wanda Gonzalez’s consent, but

he ultimately determined that he would not pursue Gonzalez’s coercion

suppression theory. For Gonzalez to prevail on his claim, he must provide an

evidentiary basis for which to find Attorney Sidelnick’s decision to forego filing

a pre-trial suppression motion unreasonable.             See Commonwealth v.

Reyes-Rodriguez, 111 A.3d 775, 783 (Pa. Super. 2015) (for matters of trial

strategy, PCRA petition claiming ineffective assistance of counsel must provide

evidentiary basis on which to find trial counsel’s actions unreasonable).

       In support of his argument, Gonzalez argues that Wanda Gonzalez

would testify that the police coerced her consent and/or that she never

consented to the search. However, Wanda Gonzalez was not present at the

PCRA hearing, and thus, Gonzalez proffered no witness testimony suggesting

she did not consent to the search or that her consent was coerced.5 In light
____________________________________________


5At Gonzalez’s PCRA hearing, the following exchange occurred between
Gonzalez and the court as follows:

       GONZALEZ: My mother[] [is] willing to testify for this, man.

       THE COURT: She’s not here. This was your shot.

       GONZALEZ: She works in North Carolina at the Naval Base. It’s
       hard for her to come out here.




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of the foregoing, we discern no error by the PCRA court in determining that

Gonzalez failed to establish that Attorney Sidelnick acted unreasonably in not

filing a pre-trial suppression motion. Fulton, supra (petitioner must establish

underlying claim has arguable merit).

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2018




____________________________________________


       THE COURT: I know, but it’s your shot, and if you have a witness
       who you claim would have been available to testify at trial, it was
       incumbent upon you to present that witness today. You failed to
       do that. For whatever reason, you failed to do that.

N.T. PCRA Hearing, 8/1/17 at 20-21.

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