J-A07034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE LOUIS NEGRON                          :
                                               :
                       Appellant               :   No. 1684 MDA 2019

            Appeal from the PCRA Order Entered September 12, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003826-2014


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 01, 2020

        Jose Louis Negron appeals from the denial of his petition for relief under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He raises

a claim of ineffective assistance of counsel. We affirm.

        The Commonwealth charged Negron with first- and third-degree murder

and two counts of aggravated assault.1 Negron proceeded to a jury trial at

which the Commonwealth argued that he was either the killer or the killer’s

accomplice. As the prosecutor argued, “Well, our case is that he is either the

principal or the accomplice.” N.T., Trial, 1/12/15 at 537. The court instructed

the jury as to both theories of criminal liability for each charge, and also

directed the jury that its verdict must be unanimous. However, the court did

not instruct the jury that it had to unanimously agree on the theory under

____________________________________________


1   18 Pa.C.S.A. §§ 2502(a), (c), and 2702, respectively.
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which it was finding Negron guilty, i.e., whether Negron was a principal or an

accomplice, and Negron’s trial counsel did not ask for such an instruction.

      The jury convicted Negron of all charges and the trial court sentenced

him to life imprisonment. Negron filed a post-sentence motion and the trial

court granted Negron relief and awarded him a new trial. However, on the

Commonwealth’s appeal, this Court reversed and reinstated the judgment of

sentence. The Pennsylvania Supreme Court denied allowance of appeal in

August 2017, and Negron did not seek further review in the United States

Supreme Court. Commonwealth v. Negron, 2017 WL 53982 (Pa.Super. filed

Jan. 4, 2017), appeal denied, 170 A.3d 1022 (Table) (Pa. filed Aug. 30, 2017).

      Negron filed the instant counseled and timely PCRA petition in July 2018,

arguing trial counsel was ineffective in failing to ask the trial court to instruct

the jury that its verdict as to the theory of liability had to be unanimous. PCRA

Petition, filed 7/20/18, at ¶ 8(f). The PCRA court issued notice of its intent to

dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 907. Negron

filed a response and the PCRA court denied the petition. This timely appeal

followed.

      Negron raises a single issue for our review: “Was [Negron] entitled to a

PCRA hearing on his claim that the trial court should have been requested to

instruct the jury as to unanimity with regard to the two different prosecution

theories for the culpability of the accused?” Negron’s Br. at 3.

      Our review of the denial of PCRA relief is limited “‘to whether the PCRA

court’s determination is supported by evidence of record and whether it is free

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of legal error.’” Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super.

2018) (quoting Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super.

2018)). A PCRA court must hold a hearing when there is a genuine issue of

material fact that it must resolve before deciding the PCRA petition, and we

review the failure to hold a hearing for error of law.               Id. (citing

Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa.Super. 2015)).

      A petitioner who raises a claim of ineffective assistance of counsel must

overcome the presumption that counsel is effective. See Commonwealth v.

Mason, 130 A.3d 601, 618 (Pa. 2015). To do so, the petitioner must plead

and prove all of the following: “(1) the legal claim underlying the

ineffectiveness claim has arguable merit; (2) counsel’s action or inaction

lacked any reasonable basis designed to effectuate petitioner’s interest; and

(3) counsel’s action or inaction resulted in prejudice to petitioner.” Id.

(citation omitted). Prejudice exists in the ineffectiveness context where a

petitioner shows “that there is a reasonable probability that, but for counsel’s

actions or inactions, the result of the proceeding would have been different.”

Id. (citation omitted).

      The question Negron has presented on appeal is whether the PCRA court

erroneously denied relief without holding a hearing, but he makes no

developed argument on that point. See Negron’s Br. at 3. The Argument

section of his brief mentions the failure to hold a hearing only in its very last

sentence. Even then, Negron makes only the conclusory assertion that “[a]

hearing on this claim was warranted before the lower court but was

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erroneously denied.” Negron’s Br. at 15. Nowhere in his brief does he attempt

to identify a genuine issue of material fact on which, according to him, the

PCRA court needed an evidentiary hearing to resolve. By failing to present a

developed argument on the sole issue listed in his Statement of Questions

Involved, Negron committed waiver and we thus affirm. Commonwealth v.

Bradley,   2020     WL   2124419    (Pa.Super.   filed   May   5,   2020)   (citing

Commonwealth v. Wise, 171 A.3d 784, 791 (Pa.Super. 2017)).

      In any event, the argument to which he devotes his brief does not merit

relief. Negron argues that “he had a right to the jury instruction of specific

unanimity” – an instruction that the jury must unanimously agree on a single

theory of guilt for each crime charged – because the Commonwealth argued

two different theories of culpability. Negron’s Br. at 13. He contends that a

“specific unanimity” instruction is required “where there is a genuine

possibility of jury confusion or a possibility that a conviction may occur as a

result of different jurors concluding that the Appellant committed different

acts.” Id. at 10.

      Negron does not cite, much less attempt to distinguish, the Pennsylvania

Supreme Court’s decision in Commonwealth v. Gonzales, 345 A.2d 691,

695 (Pa. 1975). There, the appellant argued that the voluntary manslaughter

statute “violate[d] due process because it permit[ted] the return of a verdict

under two different theories of criminal liability without requiring specification

of the theory upon which the verdict [was] based.” Id. The Court rejected the




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claim, explaining that to accept it “would require us to hold that special

verdicts may be had by right in criminal cases,” which is not the law. Id.

      Pursuant to Gonzalez, even if Negron had not committed waiver, we

would still conclude that he has failed to establish ineffectiveness. Negron’s

underlying claim that trial counsel ought to have requested a specific

unanimity instruction lacks arguable merit, and his ineffectiveness claim

therefore fails. We thus affirm the order denying his PCRA petition.

      Order affirmed.

Judge Dubow joins the Memorandum.

Judge Olson concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/01/2020




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