J-S69008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ARNALDO TORRES SANTIAGO

                            Appellant                No. 2448 EDA 2013


                   Appeal from the PCRA Order August 6, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0802161-2006


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED MARCH 13, 2015

        Appellant, Arnaldo Torres Santiago, appeals pro se from the order

entered in the Philadelphia County Court of Common Pleas, which dismissed

his first petition brought pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On April 23, 2006, Appellant fatally shot the victim, Omar Rodriquez, in the

head. Appellant was convicted in a bench trial on December 12, 2007, of

first-degree murder, firearms not to be carried without a license, carrying

firearms in public in Philadelphia, and possessing instruments of crime. That

same day, the court sentenced Appellant to life imprisonment for the murder
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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conviction, plus a concurrent aggregate term of five and one-half (5½) to

eleven (11) years’ imprisonment for the remaining offenses.         This Court

affirmed Appellant’s judgment of sentence on August 28, 2009, and our

Supreme Court denied allowance of appeal on March 22, 2010.           Appellant

filed a petition for writ of certiorari to the United States Supreme Court,

which was denied on October 4, 2010.             See Santiago v. Pennsylvania,

___ U.S. ___, 131 S.Ct. 155, 178 L.Ed.2d 93 (2010).

        Appellant filed a pro se PCRA petition, and an amended pro se petition.

The PCRA court appointed counsel; however, Appellant filed a petition to

proceed pro se.       Following a Grazier2 hearing, the PCRA court permitted

Appellant to proceed pro se on September 17, 2012. Thereafter, Appellant

filed a pro se supplemental amended PCRA petition. The PCRA court issued

notice on June 4, 2013, of its intent to dismiss Appellant’s petition without a

hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response on

July 19, 2013, and the PCRA court formally dismissed Appellant’s petition on

August 6, 2013.       Appellant timely filed a notice of appeal on August 21,

2013.

        Appellant raises the following question for our review:

           DID THE PCRA COURT ABUSE ITS DISCRETION IN
           DENYING THE PCRA [PETITION] IN THIS INSTANT CASE?
           [WERE] TRIAL COUNSEL AND DIRECT APPEAL COUNSEL
           INEFFECTIVE?
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2
    Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).



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(Appellant’s Brief at 1).

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

examining    whether        the   evidence    of   record     supports    the     court’s

determination    and    whether      its     decision    is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). 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).                We give no such deference,

however, to the court’s legal conclusions.          Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). Further, 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. Wah, 42 A.3d 335, 338

(Pa.Super. 2012).

      Appellant argues ineffective assistance of trial/appellate counsel.

Appellant contends counsel was ineffective for failing to preserve the

argument that the gun and Mr. Samuel Gonzalez Rosario, the witness who

hid the gun for Appellant, were fruit of the suppressed confession and should

have been suppressed under the exclusionary rule. Appellant claims without

his illegal confession the police would not have located Mr. Rosario and the

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gun, and the court would not have convicted Appellant.                 Appellant also

alleges counsel was ineffective for failing to cross-examine and impeach the

ballistics expert based on the inaccuracy of his report, which stated the

bullet fragments found at the crime scene matched the gun the police

recovered from Mr. Rosario. Appellant additionally contends counsel should

not have stipulated that the fragments came from the gun.                      Appellant

further avers counsel was ineffective for stipulating to the report and

findings    of    the    Commonwealth’s      forensic   pathologist   expert    witness.

Appellant asserts counsel should have insisted that the toxicologist, whose

report was introduced through the pathologist’s report, testify at trial before

the toxicology report was made part of the record, as the pathologist did not

author the toxicology report.         Appellant maintains he suffered prejudice

because he was deprived of a fair trial and effective representation.

Appellant concludes the PCRA court abused its discretion, and this Court

should reverse the PCRA court’s order, vacate his conviction, and remand for

a new trial. We disagree.

      The        law    presumes   counsel   has   rendered    effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                       When

asserting a claim of ineffective assistance of counsel, the petitioner is

required to demonstrate that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable


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probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).                   The

failure to satisfy any prong of the test for ineffectiveness will cause the claim

to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

         Once this threshold is met we apply the ‘reasonable basis’
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [an appellant] demonstrates
         that counsel’s chosen course of action had an adverse
         effect on the outcome of the proceedings. The [appellant]
         must show that there is a reasonable probability that, but
         for counsel’s unprofessional errors, the result of the
         proceeding would have been different.             A reasonable
         probability is a probability sufficient to undermine
         confidence in the outcome. In [Kimball, supra], we held
         that a “criminal [appellant] alleging prejudice must show
         that counsel’s errors were so serious as to deprive the
         defendant of a fair trial, a trial whose result is reliable.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

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      “[T]o succeed on an allegation of…counsel’s ineffectiveness…a post-

conviction petitioner must, at a minimum, present argumentation relative to

each layer of ineffective assistance, on all three prongs of the ineffectiveness

standard….”   Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d

806, 812 (2004) (internal citations omitted).        “[A] petitioner does not

preserve a…claim of ineffectiveness merely by focusing his attention on

whether…counsel was ineffective. Rather, the petitioner must also present

argument as to how the second and third prongs of the Pierce test are met

with regard to the…claim.” Commonwealth v. Santiago, 579 Pa. 46, 69,

855 A.2d 682, 696 (2004).       “[A]n undeveloped argument, which fails to

meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy [the petitioner’s] burden of

establishing that he is entitled to any relief.” Commonwealth v. Bracey,

568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).

      Instantly, Appellant’s argument on appeal baldly asserts trial/appellate

counsel’s ineffectiveness. Nevertheless, Appellant does not attempt to apply

the standard governing review of ineffectiveness claims.          The cursory

analysis set forth in Appellant’s brief does not adequately analyze his

ineffectiveness claims under the second and third prongs of the applicable

three-prong standard.     See Santiago, supra; D’Amato, supra.            Thus,

Appellant has arguably waived his ineffective assistance of counsel claims.

      Moreover, with respect to Appellant’s argument regarding suppression


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of the gun and Mr. Rosario’s testimony, this Court previously determined the

suppression claim lacked substantive merit.     Therefore, Appellant’s claim

lacks arguable merit in the context of ineffective assistance of counsel.

Accordingly, the PCRA court properly dismissed Appellant’s petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




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