J-S47010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JORGE VELEZ

                            Appellant                 No. 695 EDA 2013


                   Appeal from the PCRA Order March 1, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0400011-2005


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                             FILED AUGUST 26, 2014

        Appellant, Jorge Velez, appeals from the March 1, 2013 order denying

his first counseled petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. § 9541-9546.1 After careful review, we affirm.

        We summarize the relevant factual and procedural history of this case




Commonwealth v. Velez, 961 A.2d 1285 (Pa. Super. 2008) (unpublished

memorandum at 1), appeal denied, 972 A.2d 522 (Pa. 2009).           Gonzalez

resisted this attempt and gunfire ensued.      Id.   Appellant and two of his

cohorts, brothers Jose and Juan Alicia, were all shot. Id. Jose Alicia was
____________________________________________


1
    The Commonwealth has not filed an appellate brief.
J-S47010-14


fatally wounded. Id. Two teenagers, who were inside of the barbershop at

the time that the shooting commenced, were also injured. Id.

              At trial, the surviving brother[, Juan Alicia,] testified
              for the Commonwealth, incriminating Appellant. One
              of the teenagers identified Appellant as the
              ringleader [of the abduction attempt]. Appellant
              testified he only shot in self-defense. A bystander


              Gonzale[z], wanted on unrelated charges, failed to
              appear at trial.

Id. at 1-2.

       Following a four-day jury trial, Appellant was convicted of three counts

of aggravated assault and one count each of second-degree murder,

robbery, attempted kidnapping, criminal conspiracy, and possessing an

instrument of crime.2        On December 7, 2006, the trial court imposed on

Appellant a mandatory sentence of life imprisonment.3           See 18 Pa.C.S.A.

§



       Appellant filed a timely notice of appeal on January 3, 2007.         On

August 20, 2008, we affirmed the underlying judgment of sentence.           See

Velez, supra.        On September 18, 2008, Appellant filed a petition for

____________________________________________


2
  18 Pa.C.S.A. §§ 2702, 2502(b), 3701, 901 (to commit 2901), 903, and
907, respectively.
3

the mandatory sentence of life imprisonment.



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allowance of appeal with our Supreme Court, which was denied on May 28,

2009.      See Commonwealth v. Velez, 972 A.2d 522 (Pa. 2009) (per

curiam).

        Appellant filed the instant PCRA petition on October 22, 2009. Court-

appointed counsel filed an amended PCRA petition on July 1, 2011. On April

30, 2012, the PCRA court held an evidentiary hearing, at which time

                                                                          See N.T.,

                                                                                   .

On March 4, 2013, Appellant filed a timely notice of appeal.4

        On appeal, Appellant presents the following issue for our review.

              [1.]   Is [A]ppellant entitled to post-conviction relief
                     in the form of a new trial as a result of the
                     ineffectiveness of trial counsel for failing to
                     request the trial court to instruct the jury as to
                     self-defense?



        We begin by noting our well-settled standard and scope of review.

                                                                                  w



                                           Commonwealth v. Edmiston, 65 A.3d

339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v.

Pennsylvania                                     [Our] scope of review is limited to
____________________________________________


4
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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the findings of the PCRA court and the evidence of record, viewed in the light



Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted).    A




Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. Super. 2014) (citation




Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted)

(Spotz I).       Yet, when the

apply a de novo standard of review. Id.

      In order to be eligible for relief under the PCRA, a petitioner must

plead and prove, by a preponderance of the evidence, that his conviction or

sentence arose from one or more of the errors listed within Section

9543(a)(2).



in the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

                         Id. § 9543(a)(2)(ii).   Further, to raise a meritorious

PCRA claim, the issue must be neither previously litigated nor waived. Id.

§ 9543(a)(3).


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      Herein, Appellant alleges that he received ineffective assistance of



reviewing a claim of ineffective assistance of counsel we apply the following

test, first articulated by our Supreme Court in Commonwealth v. Pierce,

527 A.2d 973 (Pa. 1987) (adopting the ineffectiveness standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984)).

                    When considering such a claim, courts
              presume that counsel was effective, and place upon
              the appellant the burden of proving otherwise.
              Counsel cannot be found ineffective for failure to
              assert a baseless claim.

                    To succeed on a claim that counsel was
              ineffective, Appellant must demonstrate that: (1) the
              claim is of arguable merit; (2) counsel had no
              reasonable strategic basis for his or her action or

              him.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal

quotation marks and citations omitted). It is well settled that        f]ailure to

establish   any      prong   of   [Pierce      -prong]   test   will   defeat   an

                             Commonwealth v. Birdsong, 24 A.3d 319, 330

(Pa. 2011).

      Pursuant to the first prong of the Pierce

merit where the factual averments, if accurate, could establish cause for

        Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013)

(en banc) (citation and quotation marks omitted), appeal denied, ---A.3d---,

2014 Pa. LEXIS 1428 (Pa. 2014). Whether the factual allegations raised by

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a petitioner amount to arguable merit is a legal conclusion subject to de

novo review. Id.; see also Spotz I, supra.

       With regard to the second, reasonable basis prong, we do not

question whether there were other more logical courses of action which



                                     Commonwealth v. Chmiel, 30 A.3d

1111, 1127 (Pa. 2011) (citation and internal quotation marks omitted).



                                                      Commonwealth v.

Philitin

attorney performance requires that every effort be made to eliminate the

distorting effects of



                 Commonwealth v. Carson, 913 A.2d 220, 226-227 (Pa.

2006), cert. denied, Carson v. Pennsylvania, 552 U.S. 954 (2007), citing

Strickland, supra at 689.



                                                                    of the

                                         Michaud, supra (citation omitted).



                Stewart, supra (citation and quotation marks omitted). Our

Supreme Court ha


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of the proceedings [pursuant to the third prong of the Pierce test], the claim

may be dismissed on that basis alone and the court need not first determine



Commonwealth       v.   Rios,   920   A.2d   790,   799   (Pa.   2007);   accord

Commonwealth v. Luster, 71 A.3d 1029, 1039-1040 (Pa. Super. 2013) (en

banc) (internal quotation marks omitted), appeal denied, 71 A.3d 1029 (Pa.

2013).

     Instantly, Appellant claims that trial counsel rendered him ineffective

assistance by failing to request the trial court to instruct the jury on self-




           premised on the theory that [A]ppellant was part of
           a group that entered the barbershop in an attempt to
           rob and/or kidnap [] Gonzalez.           [A]ppellant
           presented witnesses at trial in an attempt to prove
           that he was not involved in the attempt to
           rob/kidnap Gonzalez, but just happened to be in the
           barbershop at the time of the incident.

                 [A]ppellant testified at trial that, after being
           shot, he fired his weapon in self-defense because he
           was frightened. One of his bullets struck [one of the

           [trial counsel also] noted that [A]ppellant claimed
           that he fired his weapon in self-defense after being
           shot.

Id. Accordingly, Appellant asserts that his self-defense was at issue in the

                                                     -defense jury instruction

amounted to ineffective assistance of counsel. Id.

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      It is well-settled that       court should instruct the jury on the law

applicable to the facts of the case before it and should charge only on those

points and issues which arise out of the evidence and arguments presented."

Commonwealth v. Mayfield, 585 A.2d 1069, 1075 (citations omitted) (Pa.

Super. 1991) (en banc

a new trial only where the charge permitted a finding of guilt without

requiring the Commonwealth to establish the critical elements of the crimes

charged beyond a                          Commonwealth v. Hansley, 24

A.3d 410, 420 (Pa. Super. 2011), appeal denied, 32 A.2d 1275 (Pa. 2011),

quoting Commonwealth v. Wayne, 720 A.2d 456, 465 (Pa. 1998), cert.

denied, 528 U.S. 834 (1999).

      The theory of self-defense is codified in Section 505 of the Crimes

Code, 18 Pa.C.S.A. §§ 101-

toward another person is justifiable when the actor believes that such force

is immediately necessary for the purpose of protecting himself against the

use



self-protection. Id.

under the circumstances in which it is used, is readily capable of causing

                                Id. at § 501. Specifically, the use of deadly




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causing death or serious bodily injury, provoked the use of force against

                                    Id. at § 505(b)(2)(i).

      Before the trial court instructs a jury on self-defense, the trial judge

must initially determine if the defendant has established a valid claim for the

defense as a matter of law. Mayfield, supra at 1070. The following three

elements comprise a valid claim of self-defense.

              [(1) T]he slayer was free from fault in provoking or
              continuing the difficulty which resulted in the

              he was in imminent danger of death or great bodily
              harm, and that there was a necessity to use such
              force in order to save himself therefrom; and [(3)
              T]he slayer did not violate any duty to retreat or to
              avoid the danger.

Id. at 1071, quoting Commonwealth v. Black, 376 A.2d 627, 630 (Pa.

1977) (citations omitted); see also

evidence from whatever source that will support these three elements[,]

then[,] the decision as to whether the claim is a valid one is left to the jury



Mayfield, supra; accord Commonwealth v. Torres, 766 A.2d 342, 345

(Pa. 2001).



ineffectiveness claim did not merit post collateral relief.       PCRA Court

Opinion, 3/6/14, at 4-6. Specifically, the PCRA court concluded that a self-




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the gunfire th

plan was hatched, entered the barbershop with the co-conspirators, was



Id. at 5.    The PCRA court also reasoned that such a charge was not




inference that [he] shot his gun because he reasonably believed his life to be

in danger[       Id. at 5-6. Moreover, the PCRA court concluded trial counsel

credibly testified that he had a reasonable basis for his actions. Id. at 4-5.

Specifically, Attorney Kauffman testified that he elected not to seek an

instruction on self-defense because

request frivolous. Id. at 5; N.T., 4/30/12, at 18. Therefore, the PCRA court




err in denying Appellant post collateral relief because trial counsel had a

reasonable basis for his actions. During the underlying PCRA hearing, trial

counsel testified that he initially intended to request a self-defense

instruction because he believed Appellant to be an innocent bystander. N.T.,

4/30/12, at 8, 13-17. Specifically, Appellant relayed to trial counsel that he

did not know the Alicia brothers, that he entered the barbershop after the

incident began, and that he was forced to the back of the shop by the

brothers. Id. at 8, 11-12, 18-19. However, Appellant admitted to counsel,


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a few days prior to trial, that he knew Juan Alicia and spent time with his

family.   Id. at 9-10; N.T., 6/5/06, at 105-106.      During trial, Appellant

testified that he was with Juan Alicia the night before the attempted



                                  -110. Appellant further testified that: (1)

he was looking for Juan Alicia immediately prior to the incident; (2) he

arrived at the barbershop seconds before the men with masks entered; (3)

he proceeded to the back of the shop, where Gonzalez happened to be

seated, upon entering it; and (4) he shot his gun towards the wall once the

brawl began. Id. at 122-

made the strategic decision to not request the self-defense instruction as the

testimony established his involvement in the altercation. N.T., 4/30/12, at

22, 34. As trial counsel had a reasonable basis for his actions, the second

prong of Pierce                                         See Chmiel, supra.



PCRA court did not err in denying Appellant PCRA relief.      See Birdsong,

supra.




      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014




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