J-S26014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

XAVIER J. RAMOS

                          Appellant                No. 1746 MDA 2016


               Appeal from the PCRA Order October 11, 2016
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0001648-2013


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 23, 2017

      Xavier Ramos appeals from the October 11, 2016 order denying him

PCRA relief. We affirm.

      We previously set forth the facts underlying Appellant’s conviction in

our decision denying relief on direct appeal.

      On July 29, 2013, the victim, M.W., was thirteen years old. She
      spent the previous night sleeping on the sofa in Appellant's
      house because she was babysitting for Appellant and his wife's
      young child. Appellant and his wife are M.W.'s uncle and aunt.

      After M.W. awoke, Appellant carried her to his bedroom, placed
      her on his bed, and left. M.W. laid on the bed and watched
      Appellant's children play a computer game in the bedroom.
      Appellant reentered the room, laid behind M.W. on the bed and
      began to “hump” her from behind by rubbing his penis against
      her buttocks. He also placed his hand down M.W.'s pants and
      began to move it sideways on her labia. At trial, M.W. testified
      that she did not say anything at the time because she was
      scared and in shock. The entire incident lasted approximately

* Former Justice specially assigned to the Superior Court.
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      eight minutes after which M.W. went to the bathroom. When
      M.W. returned from the bathroom, Appellant picked her up, spun
      her around, and told her that he loved her.

Commonwealth v. Ramos, 135 A.3d 668 (Pa.Super. 2015) (unpublished

memorandum).       Appellant’s jury trial proceeded in his absence when he

failed to appear.         He was convicted of aggravated indecent assault,

corruption of minors, and indecent assault, and received an aggregate

sentence of six to fifteen years incarceration. Appellant did not seek further

review of our decision.

      Appellant thereafter filed a pro se petition for PCRA relief. Appointed

counsel filed an amended petition, which was denied following an evidentiary

hearing.    Appellant filed a timely notice of appeal and complied with the

PCRA court’s order to file a concise statement. The court issued its opnion in

response and the matter is now ready for our review. Appellant raises two

issues for our consideration.

      I.     Trial counsel was ineffective for failing to adequately
             review discovery materials and to conduct independent
             interviews of witnesses named in those materials.

      II.    Trial counsel was ineffective for failing to investigate,
             develop, and present mitigating evidence at sentencing as
             to Defendant’s life history and background.

Appellant’s brief at 4.

      “[W]e review a denial of PCRA relief to determine whether the findings

of the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa.Super. 2017)

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(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). Both

of Appellant’s claims allege that the PCRA court erred in not finding that trial

counsel was ineffective.     To obtain relief on an ineffective assistance of

counsel claim, the PCRA petitioner must establish that “(1) the underlying

claim has arguable merit; (2) no reasonable basis existed for counsel's

action or failure to act; and (3) he suffered prejudice as a result of counsel's

error, with prejudice measured by whether there is a reasonable probability

the result of the proceeding would have been different.” Commonwealth

v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citing Commonwealth v.

Pierce, 786 A.2d 203, 213 (Pa. 2001)). A PCRA court's credibility findings

are to be accorded great deference, and where supported by the record,

such determinations are binding on a reviewing court. Commonwealth v.

Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998). A PCRA court’s legal conclusions,

however, are reviewed de novo.        Commonwealth v. Chmiel, 30 A.3d

1111, 1127 (Pa. 2011).

      Appellant’s first assignment of error attacks trial counsel’s purported

failure to investigate Appellant’s stepchildren, T.L. and C.L., as potential

witnesses.   As a general proposition, the Sixth Amendment’s guarantee of

effective assistance of counsel requires a lawyer to “undertake reasonable

investigations   or   make   reasonable    decisions   that   render   particular

investigations unnecessary.”     Commonwealth v. Basemore, 744 A.2d

717, 735 (Pa. 2000) (citing Strickland v. Washington, 466 U.S. 668, 691

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(1984)). The duty to investigate derives from counsel’s function “to make

the adversarial testing process work in the particular case.”           Strickland,

supra at 689.       This duty encompasses the need to explore avenues of

defense, including possible defense witnesses.             “[T]hat testing process

generally will not function properly unless defense counsel has done some

investigation    into   the   prosecution's   case   and    into   various   defense

strategies[.]”    Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)

(citation omitted).

      With respect to counsel’s failure to present the testimony of T.L. and

C.L., we note the distinction between a claim that counsel neglected to call a

witness and a claim that counsel failed to interview a witness.          Obviously,

trial counsel cannot elicit the testimony of a witness unknown to him, nor is

counsel in a position to assess as a matter of trial strategy whether a

particular witness would be helpful if the attorney does not know what the

witness might say. Therefore, it can be unreasonable per se to conduct no

investigation into known witnesses. Commonwealth v. Stewart, 84 A.3d

701, 712 (Pa.Super. 2013) (en banc).

      Appellant largely confines his argument to this point; i.e., he maintains

that it was unreasonable per se not to interview or speak to T.L. and C.L.

since these witnesses were mentioned in materials provided during discovery

as being present in the home at the time of these crimes. However, even if




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counsel’s actions were constitutionally unreasonable, the PCRA petitioner

must still establish prejudice.

       Appellant's penultimate issue is that trial counsel was ineffective
       in failing to interview and present the testimony of four
       witnesses. . . . Neglecting to call a witness differs from failing to
       investigate a witness in a subtle but important way. The failure
       to investigate presents an issue of arguable merit where the
       record demonstrates that counsel did not perform an
       investigation. It can be unreasonable per se to conduct no
       investigation into known witnesses. Importantly, a petitioner
       still must demonstrate prejudice. . . .

       In this respect, a failure to investigate and interview a witness
       claim overlaps with declining to call a witness since the petitioner
       must prove: (i) the witness existed; (ii) the witness was
       available to testify; (iii) counsel knew of, or should have known
       of, the existence of the witness; (iv) the witness was willing to
       testify; and (v) the absence of the testimony was so prejudicial
       as to have denied the defendant a fair trial.

Commonwealth v. Pander, 100 A.3d 626, 638–39 (Pa.Super. 2014) (en

banc) (quotation marks and citations omitted)

       The trial court determined that Appellant failed to establish prejudice

since T.L. and C.L. did not testify at the PCRA hearing.              We agree.

Assuming, arguendo, that PCRA counsel ineffectively failed to investigate1


____________________________________________


1
  Trial counsel testified that Appellant mentioned T.L. and C.L. as witnesses,
and counsel asked Appellant to provide contact information and/or have the
witnesses contact him. “[D]ifferent light falls upon counsel's performance
depending upon whether he asked and was not told, or he did not ask and
therefore was not told.” Commonwealth v. Basemore, 744 A.2d 717, 735
(Pa. 2000). Since we find that Appellant failed to prove prejudice, we need
not determine whether counsel’s failure to further investigate the named
(Footnote Continued Next Page)


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these witnesses, Appellant has offered no proof whatsoever that he was

prejudiced by these failures, since the witnesses did not testify at the PCRA

hearing.     Any notion that Appellant was prejudiced rests on sheer

speculation that the witnesses would have ultimately offered helpful

testimony.    Guesswork cannot serve to satisfy Appellant’s burden.             The

prejudice inquiry requires an analysis of the testimony that these witnesses

would have offered, not simply proof that counsel ineffectively failed to

interview the witnesses2. See Commonwealth v. Dennis, 950 A.2d 945,

964 (Pa. 2008) (“Appellant failed to carry his burden before the PCRA court.

. . . without [the witnesses'] testimony Appellant cannot demonstrate

prejudice sufficient to establish ineffectiveness of trial counsel.”). Similarly,

Appellant has failed to plead and prove his claim of ineffective assistance by

declining to present the witnesses at the evidentiary hearing.            Compare

Commonwealth v. Stewart, supra                   (affirming grant of new trial where

trial counsel failed to interview alibi witness who testified at the evidentiary
                       _______________________
(Footnote Continued)

witnesses in light of their familial relationship to Appellant was reasonable
under the second Pierce prong.
2
  The only discussion of prejudice is Appellant’s argument that “Here, both
[T.L. and C.L.] were present in the home at the time of the alleged incident,
making them eye witnesses. . . . Thus, their testimony would have been
highly relevant, and could have led to a different outcome at trial.”
Appellant’s brief at 13. However, establishing prejudice requires much more
than relevant evidence; it requires a reasonable probability that the result
would have been different.




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hearing). “If a petitioner fails to prove any of [the ineffectiveness] prongs,

his claim fails.”     Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013).

         We now address Appellant’s second claim, which is that trial counsel

ineffectively failed to present mitigating circumstances to the sentencing

court.     Appellant avers that counsel failed to inform the trial court that

Appellant had attempted to commit suicide and that Appellant had been

sexually assaulted in the past. The trial court’s opinion indicates that trial

counsel raised Appellant’s suicide attempt at an earlier juncture in the

proceedings     and   the   court   was    aware   of   that   fact   at   sentencing.

Additionally, Appellant admitted that he never told his counsel about the

prior assault. N.T., PCRA Hearing, 5/16/16, at 24. Appellant not only fails

to explain why or how counsel should have independently uncovered this

information, he fails to explain how he was prejudiced by the failure to do

so. Therefore, Appellant is not entitled to a new sentencing hearing.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2017


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