J-S17029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :     IN THE SUPERIOR COURT OF
                                                  :          PENNSYLVANIA
                                                  :
                  v.                              :
                                                  :
                                                  :
    MAURICIO JOSE BEDOLLA CAMACHO                 :
                                                  :
                         Appellant                :     No. 2653 EDA 2018

                 Appeal from the Order Entered August 6, 2018
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0002109-2008


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                        FILED JUNE 04, 2019

        Appellant, Mauricio Jose Bedolla Camacho, appeals pro se from the order

entered on August 6, 2018, dismissing, after remand, his petition filed

pursuant     to    the   Post-Conviction       Relief   Act   (“PCRA”),   42   Pa.C.S.A.

§ 9541-9546. We affirm.

        In a prior appeal from the dismissal of Appellant’s petition for collateral

relief, we summarized the factual background and procedural history of this

case as follows.

        On April 27, 2008, Appellant strangled his ex-girlfriend, Daicy
        Vazquez-Bedolla, to death. On May 1, 2009, Appellant confessed
        to the crime. On July 12, 2011, Appellant was found guilty of
        first-degree murder1 and possessing an instrument of crime.2 On
        September 22, 2011, he was sentenced to [life imprisonment
____________________________________________


1   18 Pa.C.S.A. § 2502(a).

2   18 Pa.C.S.A. § 907(a).
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       without parole together with a concurrent term of one to 60
       months’ incarceration]. This Court affirmed in part and vacated
       in part the judgment of sentence and our Supreme Court denied
       allowance of appeal. Commonwealth v. Bedolla Camacho, 60
       A.3d 864 (Pa. Super. 2012) (unpublished memorandum), appeal
       denied, 72 A.3d 600 (Pa. 2013).3 After resentencing, Appellant
       once again appealed and this Court affirmed the judgment of
       sentence. Commonwealth v. Bedolla Camacho, 87 A.3d 894
       (Pa. Super. 2013) (unpublished memorandum).

       On January 27, 2014, Appellant filed a pro se PCRA petition. On
       March 6, 2014, counsel was appointed. On August 1, 2014,
       counsel filed a petition to withdraw with an accompanying letter
       pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
       1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
       1988) (en banc). Thereafter, Appellant filed a response to
       counsel’s petition to withdraw. On January 15, 2015, the PCRA
       court issued notice of its intent to dismiss the petition without an
       evidentiary hearing. See Pa.R.Crim.P. 907. On February 9, 2015,
       Appellant filed a response to the Rule 907 notice. That same day,
       the PCRA court dismissed Appellant’s PCRA petition and granted
       counsel’s petition to withdraw. [A timely appeal followed in which
       this Court vacated the PCRA court’s dismissal order and remanded
       the matter after finding that PCRA counsel’s Turner/Finley letter
       was inadequate because it failed to address one of the claims
       raised in Appellant’s original pro se petition, i.e. whether trial
       counsel was ineffective in failing to retain expert testimony to
       support a heat of passion defense. This Court further directed the
       appointment of new counsel who should file either an amended
       PCRA petition or a compliant Turner/Finley letter and application
       to withdraw].

Commonwealth v. Bedolla Camacho, 672 EDA 2015 (Pa. Super. March 11,

2016) (unpublished memorandum) (certain footnotes omitted).




____________________________________________


3 This Court vacated the restitution portion of Appellant’s judgment of
sentence on procedural grounds.


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        On remand, newly-appointed PCRA counsel filed a Turner/Finley letter

and a petition to withdraw on April 27, 2017. On May 19, 2017, Appellant

filed a response. On September 26, 2017, the PCRA court denied counsel’s

petition to withdraw without prejudice and ordered the filing of an amended

petition.    PCRA counsel next filed an amended withdrawal petition on

November 8, 2017 and Appellant responded on November 26, 2017.                  The

PCRA court issued notice of its intent to dismiss Appellant’s petition on July

20, 2018.4 Thereafter, the court dismissed the petition and granted counsel

leave to withdraw on August 6, 2018.

        Appellant presents four issues for our review:

        [1. Did the PCRA court err or abuse its discretion on remand when
        it dismissed Appellant’s petition in reliance upon a sworn
        certification by one5 of Appellant’s trial counsel showing that
        counsel investigated the retention of an expert to testify in support
        of a heat of passion defense?

        2. Did trial counsel render ineffective assistance when they failed
        to object to the jury receiving a written copy of a portion of the
        jury instructions?

        3. Did trial counsel render ineffective assistance when they failed
        to object to the Commonwealth’s presentation of surprise
        evidence?

        4. Did trial counsel render ineffective assistance when they failed
        to request jury instructions regarding evidence of Appellant’s prior
        bad acts or misconduct?]


____________________________________________


4Appellant filed a response to the court’s notice of intent to dismiss on August
6, 2018.

5   Appellant was represented at trial by two attorneys.

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See Appellant’s Brief at Part IV (unpaginated).

          We apply the following standards when reviewing the denial of collateral

relief.

          We review an order dismissing a petition under the PCRA in the
          light most favorable to the prevailing party at the PCRA level.
          Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super.
          2010). This review is limited to the findings of the PCRA court and
          the evidence of record. Id. We will not disturb a PCRA court's
          ruling if it is supported by evidence of record and is free of legal
          error. Id. This Court may affirm a PCRA court's decision on any
          grounds if the record supports it. Id. We grant great deference
          to the factual findings of the PCRA court and will not disturb those
          findings unless they have no support in the record.
          Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).
          However, we afford no such deference to its legal conclusions.
          Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011);
          Commonwealth v. Reaves, 923 A.2d 1119, 1124 (Pa. 2007).
          Further, where the petitioner raises questions of law, our standard
          of review is de novo and our scope of review is plenary.
          Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal

denied, 64 A.3d 631 (Pa. 2013).

          Appellant first challenges the PCRA court's decision to deny relief,

without       a   hearing,   based   on   the   Turner/Finley     letter   filed   by

newly-appointed PCRA counsel on remand.            According to Appellant, neither

counsel nor the PCRA court complied with the dictates of our remand order in

that they failed to ensure that Appellant received the services of a Spanish

language translator. Additionally, as Appellant pointed out in his responses

to PCRA counsel’s Turner/Finley letter and the PCRA court’s notice of intent

to dismiss, PCRA counsel abdicated his duty of advocacy by filing an allegedly


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false certification from trial counsel declaring that counsel consulted an expert

regarding the heat of passion defense and that the expert reported he could

not provide a helpful opinion on the subject.

      As a preliminary matter, we observe that Appellant's opening claim is

not, strictly speaking, an ineffectiveness claim, although it calls for an

assessment of prior counsel’s competence.       With this in mind, we initially

address issues surrounding compliance with the mandates of Turner/Finley

and then address the underlying effectiveness of trial counsel in preparing a

heat of passion defense on behalf of Appellant.

      Counsel seeking to withdraw in PCRA proceedings

      must review the case zealously. [ C]ounsel must then submit a
      “no-merit” letter to the trial court . . . detailing the nature and
      extent of counsel’s diligent review of the case, listing the issues
      which petitioner wants to have reviewed, explaining why and how
      those issues lack merit, and requesting permission to withdraw.

      Counsel must also send to the petitioner: (1) a copy of the “no
      merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed pro
      se or by new counsel.

      Where counsel submits a petition and no-merit letter that satisfy
      the technical demands of Turner/Finley, the court . . . must then
      conduct its own review of the merits of the case. If the court
      agrees with counsel that the claims are without merit, the court
      will permit counsel to withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (internal

alteration, ellipses, and citation omitted).

      Based upon our review of the record, we are satisfied that Appellant’s

PCRA counsel fulfilled the requirements under Turner/Finley and that the

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PCRA court correctly denied relief and permitted counsel to withdraw.

Appellant raised eight claims of ineffective assistance of counsel in his original

PCRA petition. In its first notice of intent to dismiss, the PCRA court addressed

seven of those issues. Our memorandum in Appellant’s prior appeal noted

that Appellant “requested that PCRA counsel investigate and pursue an

ineffectiveness claim based on trial counsel’s failure to hire and call an expert

witness to support his heat of passion defense.” Commonwealth v. Bedolla

Camacho, 672 EDA 2015 (Pa. Super. March 11, 2016) (unpublished

memorandum) at *4. We further observed that “PCRA counsel did not refer

to or discuss this claim in his Turner/Finley letter and the PCRA court failed

to address the claim in its Rule 907 notice.”     Commonwealth v. Bedolla

Camacho, 672 EDA 2015 (Pa. Super. March 11, 2016) (unpublished

memorandum) at *4.         Accordingly, we vacated the PCRA court’s order

dismissing Appellant’s petition and remanded for the appointment of new

PCRA counsel, noting that “[n]ew PCRA counsel shall review the record and

file either an amended petition or a compliant Turner/Finley letter.”

Commonwealth v. Bedolla Camacho, 672 EDA 2015 (Pa. Super. March 11,

2016) (unpublished memorandum) (emphasis added) at *5.

      On remand, newly-appointed PCRA counsel attached a certification from

trial counsel to an amended petition to withdraw filed on November 8, 2017.

In the certification, trial counsel described his efforts to retain expert




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testimony to support Appellant’s heat of passion defense. The certification

states:

      If called to testify in the above-captioned case regarding alleged
      failure to call an expert witness at trial on the issue of heat of
      passion as a defense to first-degree murder, I would testify to the
      following: In preparation for trial, I consulted Dr. Bruce Mapes on
      the issue of whether heat of passion was a possible viable defense
      to first-degree murder in this case. I provided Dr. Mapes with
      police reports and all other discovery, as well as [Appellant’s]
      recorded statement to police. After Dr. Mapes reviewed the
      materials, I thoroughly discussed what he would be able to
      provide in the form of an expert opinion regarding heat of passion.
      Dr. Mapes was of the firm opinion that, given the facts of the case,
      he could not provide a helpful expert opinion on the issue of heat
      of passion. Of significance, Dr. Mapes noted the manner of the
      homicide (strangulation), and the fact that [Appellant’s]
      statements did not support heat of passion, including the fact that
      two ligatures were used. It was my opinion then, based upon
      everything I had reviewed and then discussed with Dr. Mapes,
      that no reasonable forensic psychologist or forensic psychiatrist
      would come to a different conclusion. Prior to trial I explained to
      [Appellant] that we were not able to obtain an expert to support
      our defense of heat of passion. At trial, notwithstanding the lack
      of an expert witness on the issue of heat of passion, I nonetheless
      presented heat of passion to the jury as a defense.

Amended Petition to Withdraw as PCRA Counsel, 11/8/17, at Exhibit A. Based

upon the certification prepared by trial counsel and filed by newly-appointed

PCRA counsel, the PCRA court found that trial counsel was not ineffective.

      The record demonstrates that Appellant has had the benefit of review

by PCRA counsel (original and newly-appointed following remand) of all issues

leveled in the original petition and that the PCRA court independently certified

that those issues lack merit. Moreover, Appellant cites no evidence to support

his bald allegation that trial counsel’s certification contained falsehoods.


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Because the PCRA court’s assessments are supported by the record and free

of legal error, we conclude that the court correctly dismissed Appellant’s

petition and granted counsel’s petition to withdraw.

      In his second claim, Appellant complains that trial counsel was

ineffective in failing to object to the trial court’s decision to permit the jury to

possess written instructions concerning the elements of the charged offenses

during their deliberations. In rejecting this claim, the PCRA court stated as

follows.

      Pa.R.Crim.P. 646 provides in relevant part:

      The trial judge may permit the members of the jury to have for
      use during deliberations written copies of the portion of the
      judge's charge on the elements of the offenses, lesser included
      offenses, and any defense upon which the jury has been
      instructed.

      Pa.R.Crim.P. 646(B). This subsection became effective in 2009.
      Even though the crime for which [Appellant] was on trial occurred
      in 2008, the trial occurred in 2011. Since Pa.R.Crim.P. 646(B)
      was in effect at the time of trial, it was proper for the trial judge
      to give written jury instructions to the members of the jury during
      deliberations. Trial counsel, therefore, was not ineffective for
      failing to object to same.

Notice of Intent to Dismiss, 1/15/15 (unpaginated).

      The PCRA court’s conclusion is free of legal error.             Contrary to

Appellant’s contention that the application of Pa.R.Crim.P. 646 violates his

constitutional rights against ex post facto application of legal rules, it is

well-settled in Pennsylvania that purely procedural rules may be applied

retroactively. See Commonwealth v. Estman, 915 A.2d 1191 (Pa. 2007);


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Morabito's Auto Sales v. Commonwealth, 715 A.2d 384, 386 (Pa. 1998)

(“It is well settled, however, that legislation concerning purely procedural

matters will be applied not only to litigation commenced after its passage, but

also to litigation existing at the time of passage.”). Procedural laws are those

which address methods by which rights are enforced.               Id.    Because

Pa.R.Crim.P. 646 is addressed to how the jury would determine issues at

Appellant’s trial, it is procedural in nature and could be applied retroactively.

Hence, this claim merits no relief.

      In his third claim, Appellant argues that trial counsel was ineffective in

failing to object to the Commonwealth’s alleged failure to produce various

documents and reports.       The certified record does not include pertinent

portions of the trial transcripts and this aspect of Appellant’s argument is so

unfocused and poorly developed that we are unable to undertake proper

appellate review. Hence, this claim is waived. See Karn v. Quick & Reilly

Inc., 912 A.2d 329, 336 (Pa. Super. 2006) (“arguments which are not

appropriately developed are waived”).

      In his final claim, Appellant alleges that trial counsel was ineffective for

failing to request a jury instruction that would guide the jury’s deliberations

concerning prior bad acts or improper conduct committed by Appellant. The

PCRA court concluded that the instruction referenced by Appellant did not

apply since there was neither proof, nor an allegation, that Appellant actually

committed a prior bad act.        See Notice of Intent to Dismiss 1/15/15


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(unpaginated) (explaining that conduct to which Appellant referred involved a

prior false declaration Appellant made to his brother in which he claimed to

have killed the victim). Since there was no actual prior bad act or improper

conduct, trial counsel was not ineffective in failing to request an instruction

under Pennsylvania Standard Jury Instruction 3.08, governing a jury’s

consideration of evidence of other offenses as substantive proof of guilt.

Appellant’s final claim merits no relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/19




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