J-S31023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                        Appellee

                   v.

RAYMOND JAVIER RIVERA

                        Appellant                  No. 1535 WDA 2018


          Appeal from the PCRA Order Entered October 15, 2018
          In the Court of Common Pleas of Westmoreland County
             Criminal Division at No: CP-65-CR-0004795-2011


BEFORE: OLSON, STABILE, AND McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J:                        FILED AUGUST 27, 2019

     Appellant, Raymond James Rivera, appeals from the October 15, 2018

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.

     The PCRA court summarized the pertinent facts:

           The charges in this matter arise from a shooting that
     occurred in New Kensington, Westmoreland County, on October
     20, 2011, wherein [Appellant] shot two individuals, one of whom
     died, and the other whom was seriously injured. On the evening
     of the crime, John (a/k/a “New York Mike”) Evans, Willie Young,
     and Laquan (“Zay”) Cargill were at the Central City Plaza shopping
     center in the City of New Kensington. Evans intended to visit the
     Family Dollar store, which was one of the businesses in the strip
     mall, to meet up with another friend called “Tree.” When Evans
     entered the Family Dollar, Young and Cargill continued to the
     Shop-n-Save store to buy cigarettes. When Young and Cargill
     returned to the Family Dollar store, Young briefly entered the
     store and told Evans that they had returned, and then waited with
     Cargill outside the store. As Evans and “Tree” came out of the
     front doors of the Family Dollar store, Young heard a woman, later
J-S31023-19


       identified as April Cevario, begin screaming at Evans. Young
       noted that Evans did not react to the screaming woman. He then
       saw [Appellant] pull up in his car in the parking lot near the Family
       Dollar store. Young testified that Evans told [Appellant], “Come
       get your girl,” and [Appellant] lifted up his shirt, pulled out his
       gun, and shot Evans two or three times. Evans fell immediately
       to the ground. [Appellant] then stepped over Evans, pointed the
       gun at Young, and stated, “You’re next.” [Appellant] then fired
       the gun at Young, who turned and ran into the Family Dollar store.
       Young suffered gunshot wounds to his leg and arm. Evans died
       at the scene. [Appellant] then fled the scene and disposed of the
       gun, but turned himself in to police the following day.

PCRA Court Opinion, 10/15/18, at 1-2 (record citations omitted).

       On November 13, 2013, the trial court sentenced Appellant to serve life

in prison without parole for first-degree murder (18 Pa.C.S.A. § 2502(a)).

This Court affirmed the judgment of sentence on June 18, 2015, and our

Supreme Court denied allowance of appeal on February 1, 2016. Appellant,

pro se, filed timely first PCRA petition on December 12, 2016.         Appointed

counsel filed an amended petition on April 26, 2017. The PCRA conducted a

hearing on July 6, 2018. This timely appeal followed the PCRA court’s denial

of relief.

       Appellant presents two questions for our review:

             1. Whether the court below erred in failing to find trial
                counsel ineffective for failing to interview or subpoena a
                witness named Deon Lee who could have testified that
                that the victim possessed a firearm shortly before the
                shooting, which would have supported Appellant’s claim
                of self-defense[?]

             2. Whether the court below erred in failing to find trial
                counsel ineffective for failing to engage an expert to
                determine whether the victims had the presence of



                                       -2-
J-S31023-19


               gunshot residue on their hands, which would have
               supported Appellant’s claim of self-defense[?]

Appellant’s Brief at 3.

      We conduct our review as follows:

             In PCRA appeals, our scope of review is limited to the
      findings of the PCRA court and the evidence on the record of the
      PCRA court’s hearing, viewed in the light most favorable to the
      prevailing party. Because most PCRA appeals involve questions
      of fact and law, we employ a mixed standard of review. We defer
      to the PCRA court’s factual findings and credibility determinations
      supported by the record. In contrast, we review the PCRA court's
      legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(en banc) (internal citations and quotation marks omitted), appeal denied,

123 A.3d 331 (Pa. 2015). To establish that counsel rendered constitutionally

ineffective assistance, a PCRA petitioner must plead and prove that the

underlying issue is of arguable merit; that counsel had no reasonable strategic

basis for the disputed action or inaction; and that counsel’s error prejudiced

the petitioner, such that the outcome of the proceeding would have been

different but for the error. Id. at 780.

      Appellant argues that trial counsel was ineffective for failing to call a

witness, Deon Lee, who would have testified that the decedent was in

possession of a firearm shortly before Appellant shot him. To prevail on this

claim, Appellant needed to prove that: Lee existed; Lee was available and

willing to testify for the defense; counsel knew or should have known of Lee’s




                                     -3-
J-S31023-19


existence; and the absence of Lee’s testimony deprived Appellant of a fair

trial. Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).

      Appellant has failed in his burden in this case because he failed to

produce Lee at the PCRA hearing. There is no evidence that Lee was available

and willing to testify for the defense, or that he would have testified in

accordance with Appellant’s claim.     Indeed, there is no evidence that Lee

exists. For the reasons explained on pages five through eight of the PCRA

court’s October 15, 2018 opinion, we conclude that Appellant’s argument lacks

merit.

      With his second argument, Appellant asserts that trial counsel was

ineffective for failing to procure expert analysis of gunshot residue (“GSR”)

kits performed on the victims’ clothing. Appellant claims positive results would

have supported his self-defense theory of the case.         As the PCRA court

explained, however, none of the witness on the scene corroborated Appellant’s

claim that Young was armed and fired at Appellant. No gun was recovered

from Evans’ body. All seven shell casings recovered from the scene were fired

from Appellant’s gun. Appellant himself testified that Evans did not fire a shot.

In summary, there is no evidence that either victim was armed or fired at

Appellant, and therefore it is unlikely that the GSR tests would have been

positive. While a positive test would have bolstered the defense, a positive

test was unlikely given the available evidence. On the other hand, a negative

test could have been damaging to the defense, and a negative result seems


                                      -4-
J-S31023-19


likely given the available evidence. For the reasons explained on pages twelve

through fourteen of the PCRA court’s October 15, 2018 opinion, Appellant’s

argument lacks merit.

     Based on our observations above and on the PCRA court’s well-reasoned

opinion, we affirm the order denying relief. We direct that a copy of the PCRA

court’s opinion be filed along with this memorandum.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2019




                                    -5-
                                                                                                      Circulated 07/25/2019 02:40 PM




         IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
                   PENNSYLVANIA - CRIMINAL DIVISION


     COMMONWEALTH OF PENNSYLVANIA                                   )
                                                                    )
                                vs.                                 )
                                                                    )        No.      4795 C 2011
                  RAYMOND RIVERA,                                   )
                                                  Defendant.        )

                                      OPINION AND ORDER OF COURT

              AND NOW, this £day of October, 2018, upon consideration of Defendant's

     petition filed pursuant to the Post Conviction Relief Act, (42 Pa.C.S. §9541, et seq.) and

     testimony taken during an evidentiary hearing on July 6, 2018, it is hereby ORDERED

     and DECREED that Defendant's petition for post-conviction relief is DISMISSED for

     the following reasons:

         I.       FACTUAL AND PROCEDURAL HISTORY:

         The charges in this matter arise from a shooting that occurred in New Kensington,

     Westmoreland County, on October 20, 2011, wherein Defendant shot two individuals;

     one of whom died, and the other whom was seriously injured. On the evening of the

     crime, John (a/k/a "New York Mike") Evans, Willie Young, and Laquan ("Zay") Cargill

     were at the Central City Plaza shopping center in the City of New Kensington. Evans

     intended to visit the Family Dollar store, which was one of the businesses in the strip
:,


     mall, to meet up with another friend called "Tree." (TT 162). When Evans entered the
                                                                  1




     1Numerals in parenthesis preceded by the letters "IT' refer to specific pages of the transcript of the testimony
     presented at trial, held August 12-17, 2013, and made a part of the record herein.

                                                                1
 Family Dollar, Young and Cargill continued to the Shop-n-Save store to buy cigarettes.

 (TT 164). When Young and Cargill returned to the Family Dollar store, Young briefly

. entered the store and told Evans that they had returned, and then waited with Cargill

 outside the store. (TT 164-65). As Evans and "Tree" came out. of the front doors of the

 Family Dollar Store, Young heard a woman, later identified as April Cevario, begin .

 screaming at Evans. (TT 167). Young noted that Evans did not react to the screaming

woman. He then saw Defendant pull up in his car in the parking lot near the Family

Dollar store.   Young testified that Evans told Defendant, "Come get your girl," and

Defendant lifted up his shirt, pulled out his gun, and shot Evans two or three times. (TT

 168-69). Evans fell irrunediately to the ground. Defendant then stepped over Evans,

pointed the gun at Young, and stated, "You're next." (TT 169). Defendant then fired the

gun at Young, who turned and ran into the Family Dollar store. Young suffered gunshot

wounds to his leg and his arm. (TT 170). Evans died at the scene. Defendant then fled the

scene and disposed of the gun, but turned himself into police the following day.

    Defendant was charged with one count of criminal homicide, 18 Pa.C.S.A. §2501( a),

one count of attempted homicide, 18 Pa.C.S.A. §901(a), one count of aggravated assault,

 18 Pa.C.S.A. §2702(a)(l), one count of aggravated assault, 18 Pa.C.S.A. §2702(a)( 4), and

one count of possession of a firearm, prohibited, 18 Pa.C.S.A. §6015(a)(l).

       Defendant proceeded to a jury trial, wherein he was represented by Attorneys

Christopher Haidze and Alan Manderino of the public defender's office. He was found

Guilty at all counts on August 16, 2013. Defendant was sentenced on November 13, 2013

to life in prison without the possibility of parole. Defendant filed a direct appeal, and the

                                              2
Court's judgment of sentence was affirmed by the Pennsylvania Superior Court on June

18, 2015. Defendant's petition for allowance of appeal was denied by the Pennsylvania

Supreme Court on February 1, 2016.

       Defendant filed a pro-se petition for post-conviction relief on December 12, 2016 .

. The Court appointed Attorney Timothy Andrews to represent him, and Attorney Andrews

filed an amended PCRA petition on April 26, 2017. The Court ordered an evidentiary

hearing on the matter, but prior to the hearing, Attorney Andrews filed a motion to

withdraw as counsel, citing Defendant's statement that he had reported him to the

Disciplinary Board for failure to pursue Defendant's claims. Thus, on October 24, 2017,

Attorney Andrews' appearance was withdrawn, and Attorney Michael DeMatt was

appointed to represent Defendant in further proceedings. An evidentiary hearing was held

on July 6, 2018.

       In his amended petition for relief, Defendant makes the following claims: ( 1) the

failure to interview or �ubpoena a witness named Deon Lee regarding information that

the victim possessed a firearm minutes before the confrontation represents ineffective

assistance of counsel; (2) counsel was ineffective for failing to secure an investigator to

determine if any other bullets could be recovered from the crime scene; (3) counsel was

ineffective for failing to interview and subpoena former Arnold Police Chief Eric Doubt

who Defendant avers would have testified that the victim had threatened Defendant's life;

and (4) counsel was ineffective in failing to advise Defendant of a plea offer from the

Commonwealth prior to trial; and (5) counsel was ineffective for failing to perform a

gunshot residue test on either John Evans or Willie Young.

                                             3
   II.      ELIGIBILITY FOR RELIEF:

         The requirements for relief under the Post-Conviction Relief Act are set forth both

in the Act itself (42 Pa.C.S. §9541, et. seq.) and in the Rules of Criminal Procedure

(Pa.R.Crim.P. Rules 901 and 902). Generally speaking,

               PCRA petitioners, to be eligible for relief, must, inter alia,
               plead and prove their assertions by a preponderance of the
               evidence. Section 9543(a). Inherent in this pleading and proof
               requirement is that the petitioner must not only state what his
               issues are, but also he must demonstrate in his pleadings and
               briefs how the issues will be proved. Moreover, allegations of
               constitutional violation or of ineffectiveness of counsel must
               be discussed "in the circumstances of the case." Section
               9543(a)(2)(i-ii). Additionally, the petitioner must establish by·
               a preponderance of evidence that because of the alleged
               constitutional violation or ineffectiveness, "no reliable
               adjudication of guilt or innocence could have taken place."
               Section 9543(a)(2)(i-ii). Finally, petitioner must plead and
               prove that the issue has not been waived or finally litigated,
               §9543(a)(3), and if the issue has not been litigated earlier, the
               petitioner must plead and prove that the failure to litigate
               "could not have been the result of any rational, strategic or
               tactical decision by counsel." Section 9543(a)( 4).
               Comm. v. Rivers, 786 A.2d 923, 927 (Pa. 2001).

         Further, a PCRA petition, including second and subsequent petitions, must be filed

within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.

§9545(b)(l); Pa.R.Crim.P. Rule 901. The Pennsylvania Supreme Court "has repeatedly

stated that the PCRA timeliness requirements are jurisdictional in nature and,

accordingly, a PCRA court cannot hear untimely PCRA petitions." Comm. v. Ligons,

971 A.2d 1125, 1164 (Pa. 2009) (citing Comm. v. Rienzi, 827 A.2d 369, 371 (Pa. 2003)).



                                              4
           In this case, the Pennsylvania Supreme Court denied Defendant's petition for

allowance of appeal on February 1, 2016. The instant PCRA petition was filed on

December 12, 2016. Thus, Defendant's petition is patently timely.

    Additionally, because Defendant has raised an allegation of the ineffective assistance

of counsel, he must plead and prove, by a preponderance of the evidence:

         (1) that there is merit to the underlying claim; (2) that counsel had no
         reasonable basis for his or her course of conduct; and (3) that there is a
         reasonable probability that, but for the act or omission challenged, the
         outcome of the proceeding would have been different. Comm. v. Jones,
         683 A.2d 1181, 1188 (Pa. 1996). Counsel is presumed to be effective
         and Appellant has the burden of proving otherwise. Comm. v. Marshall,
         633 A.2d 1100 (Pa. 1993). Additionally, counsel cannot be considered
         ineffective for failing to raise a claim that is without merit. Comm. v.
         Peterkin, 649 A.2d 121 (Pa. 1994); Comm. v. Holloway, 739 A.2d
         1039, 1044 (Pa. 1999).

         Each of Defendant's claims of ineffective assistance of counsel will be discussed

in turn.

   ID.           DISCUSSION:

           (A)     WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO
                 INTERVIEW OR SUBPOENA DEON LEE?

         First, Defendant asserts that counsel was ineffective for failing to subpoena Deon

Lee for trial, regarding testimony that victim John "New York Mike" Evans had been

threatening Defendant, and was in possession of a fireami shortly before the shooting.

         When       raising   a failure to call a potential witness claim,   the PCRA petitioner

satisfies the performance and prejudice requirements of the ineffective assistance of

counsel test by ·establishing that: (1) the witness existed; (2) the witness was available to

testify for the defense; (3) counsel knew of, or should have known of, the existence of

                                                  5
    the witness; (4) the witness was willing to testify for the defense; and (5) the absence of

    the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.

    Comm. v. Washington, 927 A.2d 586, 599 (Pa. 2007). To demonstrate prejudice,

the PCRA petitioner "must show how the uncalled witnesses1 testimony would have been

beneficial under the circumstances of the case." Comm. v. Gibson, 9 51 A.2d 1110, 1134

(Pa. 2008); see also Comm.                 v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) ("Trial

counsel's failure to call a particular witness does not constitute ineffective assistance

without some showing that the absent witness1 testimony would have been beneficial or

helpful in establishing the asserted defense.").

          Attorney Christopher Haidze testified at the evidentiary hearing:

                  I remember the name. I don't think we called him: I don't
                  know that we got in touch with him to call him as a witness. I
                  don't recall if he would've been a witness for prior issues
                  between the two of them or from that night. But I do not
                  know that we tried to contact him ... but if we did contact
                  him, and he did provide us [relevant] information, that we
                  would have used him. I don't recall that we were able to find
                  him. (PCRA 7).2

Defendant also entered into evidence a letter that was contained within the public

defender's file. The letter was dated a few months prior to trial, and was signed by Deon

Lee. It read, in part:

                  He came across the street to Mike's shop. And Mike and his
                  cousin joined in with screaming at [Defendant] and making
                  threats towards [Defendant]. [Defendant] has never got in any
                  trouble whatsoever. He is very· polite pleasant to everyone,
                  hard worker.

2
 Numerals in parenthesis preceded by the letters "PCRA" refer to specific pages of the transcript of the testimony
presented at the PCRA evidentiary hearing, held July 6, 2018, and made a part of the record herein.

                                                          6
              The harassment went on for some time. It got to the point
              where I told Mike to leave him alone. He don't bother
              anyone. He told me to shut the "F" up.

              I would talk with [Defendant] just about every day to see if he
              was okay because I know he was being harassed and
              threatened. I would tell him Mike started to run around town
              like he was a real killer, big time gangster.



              I seen Mike take the gun from under his cabinet - countertop
              and put it in his pants on the right side. We left out of his
              shop and Thai and Pokey was there. So Mike asked me to
              walk over to Family Dollar with them. I told him no. We got
              to the comer of 9th and 4th, and I told him I was going home
              and would see him tomorrow.
              (PCRA 9-10).

Attorney Manderino similarly testified that he could not recall whether he reached out to

Deon Lee in regards to the letter. (PCRA 33).

       Certainly, the aforementioned testimony would be beneficial for Defendant, as Lee

would assert that Evans was armed shortly before the shooting, and that Evans had been

harassing Defendant for some time. Attorneys Haidze and Manderino were also aware of

this witness, as reflected in the letter contained within the public defender's file. What is

less clear is whether Deon Lee was willing to testify at trial, and whether he was actually

available. Moreover, because Lee did not testify at the evidentiary hearing, it is

impossible for this Court to determine whether Defendant was prejudiced, since it was

not able to judge his credibility. Comm. v. Khalifah, 852 A.2d 1238 (Pa.Super. 2004). As

noted by the Supreme Court in Johnson, the main reason that evidentiary hearings are

held is "so that credibility determinations can be made; otherwise, issues of material fact

                                              7
could be decided on pleadings and affidavits alone." Comm. v. Johnson, 966 A.3d 329

(Pa. 2009). If Lee were present, he could also state whether he was willing to testify at

trial.

         In Lee's absence, the Court is left only with a letter purportedly signed by an

individual with unknown credibility who has never testified under oath regarding his

statements. For these reasons, Defendant's claims regarding his counsel's failure to call

this witness are meritless.

         (A)      WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO
               SECURE AN INVESTIGATOR TO DETERMINE IF ANY OTHER
               BULLETS COULD BE RETRIEVED FROM THE CRIME SCENE?

         Defendant next contends that in an attempt to bolster his claim of self-defense,

counsel should have hired an expert to recover additional bullets or shell casings from the

crime scene.

         At trial, Detective Hugh Shearer, an expert in the field of crime scene

investigation with 42 years of law enforcement experience (12 years of which had been

dedicated to crime scene investigation), testified that he recovered four ( 4) 9 millimeter

cartridge casings near Evans' person. (TT 345, 351). Cartridge casing one (1) was

recovered six (6) feet south of Evans' head; cartridge casing two (2) was recovered eight

(8) feet south of Evans' waist; cartridge three (3) was recovered nine (9) feet south of

Evans' waist; and cartridge case four (4) was recovered twelve ( 12) feet south of Evans'

feet. (TI 353). Detective Shearer also recovered three (3) additional spent casings on the

sidewalk in front of the Family Dollar Store. (TI 354). Fragments of bullets were also

located near the scene and inside the Family Dollar Store. (TT 360-62). Moreover,

                                             8
Detective Shearer testified that "during the course of moving the victim's left leg, a

bullet, a discharged bull et, had [fallen] out of the cuff of[] his pant leg of his left leg. (TI

368).

        Attorney Haidze testified during the evidentiary hearing that "we got involved

well after the preliminary hearing so we didn't have anyone investigating the scene for

trace evidence or physical evidence like that." (PCRA 12).

        There is no merit to Defendant's claim. As noted, supra, an experienced crime

scene investigator pored over the crime scene in careful and meticulous fashion.

Detective Shearer methodically searched the active crime scene and photographed and

labeled all evidence shown. As noted by Attorney Haidze, the public defender's office

was not involved with the case until after the preliminary hearing, at which point the

crime scene was no longer in the same condition as it was shortly after the commission of

the crime. Any search conducted after the relevant evidence had already been collected

would not have been legally admissible. For these reasons, defense counsel was not

ineffective in their failure to call another ballistics expert to search the scene.

        (B)WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL
           AS A WITNESS POLICE CHIEF ERIC DOUBT?

        Defendant next claims that defense counsel was ineffective for failing to interview

or call Arnold Police Chief Eric Doubt. Defendant avers that he informed Chief Doubt

that Victim had threatened his life via telephone. Specifically, Defendant testified:

               I let them know that I was threatened by Mike -- I went to the
               police station in Arnold, PA. I reported to the Chief of Police.
               He had advised me to come down to Westmoreland County


                                                9
              Courthouse and to try to put a restraining order on Mike and
              his guys.
              (PCRA 45).

Defendant further testified that a restraining order was never issued. Id.

       As noted, supra, in order to successfully assert a claim of ineffective assistance in

counsel in reference to failure to call a witness, the defendant must establish (1)

the witness existed; (2) the witness was available to testify for the defense; (3) counsel

knew of, or should have known of, the existence of the witness; (4) the witness was

willing to testify for the defense; and (5) the absence of the testimony of the witness was

so prejudicial as to have denied the defendant a fair trial. Comm. v. Washington, 927

A.2d 586, 599 (Pa. 2007).

       In this instance, Defendant has failed to establish even a single prong. Unlike the

proffered testimony of Deon Lee, Defendant has not introduced any piece of evidence

that would support     the   notion that Chief Doubt would have testified to such a

conversation with Defendant. Neither Attorney Haidze nor Manderino had any

recollection of conversations with Chief Doubt. (PCRA 13, 34). Similarly, Chief Doubt

was not present to testify regarding his conversations with Defendant: Thus, what is left

for the Court to analyze is a statement by Defendant regarding an alleged conversation

with Chief Doubt, who did not testify to·the accuracy of such a statement. For many of

the same reasons that Defendant's argument regarding Deon Lee must fail, paired with

the fact that Chief Doubt has not verified the veracity of Defendant's statements, this

claim too must fail.



                                             10
       (C)     WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO
             ADVISE DEFENDANT OF A PLEA OFFER FROM THE
             COMMONWEALTH?
       Defendant also asserts that counsel was ineffective for failing to notify him of an

offer made by the Commonwealth. Defendant does not state the details of such an offer,

but testified at the evidentiary hearing as follows:

               I remember that I was told by my counsel that it was a self-
               defense case; it was all or nothing. That they didn't believe
               the plea offer that was given to me was - that I shouldn't take
               it. It was good for me to win the case. (PCRA 46).

When asked what the offer was, Defendant testified, "there was - final 10 to - 5 to 10 for

different types of programs or extensions-for different types, running separate." (PCRA

46).

       Although Defendant's amended PCRA asserts that Defendant was J?.Ot informed of

a plea offer, Defendant is seemingly arguing that counsel was ineffective for advising

Defendant to reject a proffered offer. Certainly, counsel has a duty to inform his or her

client of tendered plea agreements and may be found ineffective for failing to do

so. Comm. v. Copeland, �54 A.2d 54 (Pa.Super. 1988). To succeed on this issue,

Defendant must prove (1) an offer for a plea was made; (2) trial counsel failed to inform

him of such .offer; (3) trial counsel had no reasonable basis for failing to inform him of

the plea offer; and (4) he was prejudiced thereby. Id. If Defendant is averring that counsel

improperly advised him to reject a plea offer, the standard ineffective assistance of

counsel three-prong test would apply.




                                               11
       Attorney Haidze testified that he did not recall any plea offers being made, but that

if there were "we would have discussed with Mr. Rivera." (PCRA 14). Further, he

testified that he "would never advise a client to reject an offer," and that it is his practice

to simply advise a client of the offer. (PCRA 22). Attorney Manderino testified that he

did not recall any plea offers being made. (PCRA 34). He also testified that he always

informs clients of plea offer, viewing it as his "obligation even if the offer was

ridiculous." (PCRA 39).


       Defendant has not offered any proof that such a plea offer existed. If Defendant is

arguing that he was unaware that a plea offer existed, it is unclear how Defendant learned

of such an offer that does not exist in the record nor in the public defender's file. If

Defendant is arguing that counsel advised him to reject an offer, Attorney Haidze and

Manderino's credible testimony belies this averment, As aptly noted by Attorney Haidze

at the evidentiary hearing, "probably every time we get an offer, we encourage the client

to consider it because that certainly moves things along quicker than investing the time

that it took to try this case." (PCRA 22). As the Court has determined the defense

counsel's testimony was credible and that Defendant's testimony was not credible, this

claim, too, must fail.


       (E) WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO HIRE
       AN EXPERT TO DETERMINE WHETHER GUNSHOT RESIDUE .WAS
       PRESENT ON VICTIM'S PERSON?
       Last, Defendant avers that counsel was ineffective in their decision not to present

an expert who could determine whether gunshot residue was present on the clothing of


                                               12
John Evans. Testimony presented at trial established that gunshot residue tests were not

performed on either Willie Young or John Evan's clothing because it is the policy of the

Pennsylvania State Police not to perform such tests on victims. (TT 121).

       First, there is merit to Defendant's claim. If gunshot residue were found on either

victim, such evidence would certainly be beneficial for Defendant's claims of self-

defense. However, Defendant cannot successfully. assert that had such a test been

performed on the victims, there is a reasonable probability that the outcome of the

proceeding would have been different.

       Doctor Cyril Wecht testified that John Evans died as the result of two (2) gunshot

wounds. (TT 332). Young testified that he believed that Defendant shot at him three

times, but he was shot twice. (TT 170, 173). Their testimony is consistent with the

findings of Detective Shearer, who located a total of seven (7) shell casings at the scene.

Four (4) of those were recovered near Victim John Evan's person, while three (3) were

recovered on the sidewalk of the Family Dollar, near where Victim Willie Young was

standing at the time he was shot. Moreover, Corporal David J. Burlingame testified that

as an expert in the field of ballistics, it was his opinion that the seven (7) discharged shell

casings were discharged by Defendant's firearm. (IT 452).

        As to his contention that John Evans' clothing should have been tested for

gunshot residue, Defendant testified at trial that Evans never fired a shot pr_ior to being

mortally wounded. After firing two warning shots at the ground, Defendant testified that

Evans "kept coming" at him. At that time, Defendant stated he took a gun out of his

waistband, and <was on his way to pointing towards me." He then shot Evans. (IT 779-

                                              13
781). Thus, based on Defendant's own testimony and the evidence presented, defense

counsel acted reasonably in not testing Evans' clothing for gunshot residue, and there is

little evidence that the result at trial would have been different had the test been

administered.

       While Defendant contends that Evans never fired a shot, he did testify that he only

shot Young after Young fired a shot in his direction. Specifically, he testified that prior to

shooting Young, he saw him reaching for his waistband and "heard a pop comin[g] from

his direction. (TT 782). At that point, he testified that he shot him. (TT 779-82).

       Defendant's testimony is not supported by the record. As noted, supra, Corporal

Burlingame stated in his expert opinion, all shell casings found at the scene came from

the Defendant's firearm that was discarded and later recovered by officers. (IT 452).

None of the individuals who arrived at the scene shortly after the shooting testified that

Young was in possession of a firearm. (TT 70-90).

     · Based on the lack of evidence in the record supporting the notion that Willie

Young fired a shot at Defendant prior to being shot by him, there is little evidence that

had a gunshot residue test been performed on Young, the result at trial would have been

different. For that reason, Defendant's claiming regarding Willie Young must also fail.


       For the reasons set forth in the Court's Opinion, Defendant's Petition for Post-

Conviction Relief, filed pursuant to the Post Conviction Relief Act, (42 Pa.C.S. §9541 et.

Seq.) is hereby DISMISSED.




                                              14
      THE DEFENDANT IS NOTIFIED THAT ANY APPEAL TO THE

SUPERIOR COURT OF PENNSYLVANIA FROM THIS COURT'S DISMISSAL

OF HIS PCRA PETITION MUST BE FILED WITHIN THIRTY (30) DAYS

FROM THE DATE OF TIDS ORDER OF COURT.




ATTEST:


Clerk of Courts


cc:   Fife
      John Petrush, Esq., Assistant District Attorney
      Michael Dematt, Esq., Counsel for Defendant
      Chris Haidze, Esq., Trial Counsel for Defendant
      Alan Manderino, Esq., Trial Counsel for Defendant
      Raymond Rivera, Defendant- SCI Forest, (L Y-3752)
                        286 Woodland Drive
                       P.O. Box 945
                       Marienville, PA 16239
      Pamela Neiderhiser, Esq., Court Administrator's Office




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