J.   S82019/16

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


COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                     v.

RICKY JUNIOR HERNANDEZ,

                           Appellant               No. 439 MDA 2016

                  Appeal from the PCRA Order February 23, 2016
                  In the Court of Common Pleas of Berks County
                 Criminal Division at No.: CP- 06 -CR- 0004760 -2006

BEFORE: OTT, DUBOW, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                             FILED JANUARY 17, 2017

         Appellant, Ricky Junior Hernandez, appeals from the Order entered in

the Berks County Court of Common Pleas dismissing his first Petition filed

under the Post Conviction Relief Act ( "PCRA "), 42 Pa.C.S. §§ 9541 -9546. He

challenges the effective assistance of trial counsel. After careful review, we

affirm.

         The PCRA court stated the relevant facts in its Pa.R.A.P. 1925(a)

Opinion as follows:

         [On the evening of August 5, 2006, Jose] Miranda approached
         Appellant and his two friends [at the Neversink Playground in
         Reading, Pennsylvania].       Appellant described Miranda as
         intoxicated, aggressive[,] and physically imposing. Miranda said
         something to Appellant that angered him. Appellant and his
         friend, Omar Tirado (Tirado), left the park to go to Appellant's


*    Retired Senior Judge Assigned to the Superior Court.
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     house to retrieve a gun. Appellant went back to the park and
     shot Miranda in the chest at close range. After being shot,
     Miranda made his way to the porch of a neighboring home and
     collapsed. Miranda was transported to a hospital where he died
     shortly thereafter. Appellant later claimed Tirado, an eyewitness
     to the shooting, had told him Miranda had a knife. Appellant
     tried to get Tirado to change his testimony to back up
     Appellant's theory of self- defense and to say that Appellant had
     the gun on him at the park when the shooting occurred. Tirado
     told the jury about going to Appellant's home to retrieve a gun
     after the encounter with Mira[n]da and that he did not see a
     weapon on the victim during the encounter. The testimony at
     trial was clear that no knife or gun were ever found in the park,
     after the shooting, or on the victim's person.          [Appellant
     voluntarily provided a written statement to police admitting that
     he shot Miranda because he felt intimidated and fearful.]

     Appellant was charged by Criminal Information with one count
     [each] of [First- Degree Murder, Third -Degree Murder, Firearms
     not to be Carried without a License, Possession of an Instrument
     of Crime, and two counts of Aggravated Assault.] On February
     15, 2008, after a jury trial lasting five days, the jury found
     Appellant not guilty of Murder of the First Degree, but guilty of
     the other crimes[.] The sentencing hearing was held on April 1,
     2008; Appellant was sentenced, for Murder of the Third Degree,
     to [12 to 40 years' incarceration], with credit for 602 days. He
     received concurrent sentences on the other charges. Appellant
     did not file Post -[S]entence [M]otions or a direct appeal.

     On March 17, 2009, Appellant filed a Post Conviction Relief Act
     Petition (PCRA), pro se[,] and PCRA counsel was appointed.
     New counsel entered his appearance on March 25, 2011[,] and
     PCRA counsel was permitted to withdraw. On July 22, 2011,
     Appellant filed an amended PCRA [P]etition and a hearing was
     scheduled for September 7, 2011. On September 11, 2011,
     Appellant's direct appeal rights were reinstated nunc pro tunc
     and he filed his Notice of Appeal to the Superior Court on
     September 27, 2011. On October 22, 2012, the Superior Court
     affirmed the [J]udgment of [S]entence.       On September 25,
     2013, the Supreme Court of Pennsylvania denied the request for
     review.

     On August 15, 2014, Appellant, through counsel, filed the instant
     PCRA Petition, which we considered as his first. An evidentiary


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      hearing was held and the parties were given the opportunity to
      file briefs. On February 23, 2016, we denied Appellant's PCRA
      [P]etition.

PCRA Court Opinion, filed      5/24/16, at 2 -3 (citations omitted).

      Appellant filed   a   timely Notice of Appeal. Both Appellant and the   PCRA

court complied with Pa.R.A.P. 1925.

      Appellant presents three issues for our review:

      I. Did the PCRA court commit an error of law or make a decision
      unsupported by the record when it concluded that trial counsel
      performed adequately despite not filing a meritorious motion to
      suppress [Appellant's] confession?

      II.                             error of law or make a decision
             Did the PCRA court commit an
      unsupported by the record when it determined that trial counsel
      was effective despite not making a record of the preliminary
      hearing testimony when inconsistencies in the Commonwealth's
      witness accounts were central to the defense?

      III.    Did the PCRA court commit an error of law and ma[k]e a
      decision unsupported by the record when it found that trial
      counsel was effective despite requesting a prison sentence that
      was more than double the applicable minimum guideline term of
      imprisonment?

Appellant's Brief at 5.

      We review the denial of a PCRA petition to determine whether the

record supports the PCRA court's findings and whether its order is otherwise

free of legal error.        Commonwealth v. Fears, 86 A.3d 795, 803            (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court's




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legal conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194                            (Pa.

Super. 2012).

       To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter a /ia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S.              §   9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.    42 Pa.C.S.        §   9543(a)(3).     An allegation of

error "is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in                 a   prior state

postconviction proceeding." 42 Pa.C.S.         §   9544(b).

       The   law   presumes    counsel      has      rendered      effective       assistance.

Commonwealth v. Rivera,          10 A.3d 1276, 1279 (Pa. Super. 2010).                    The

burden of demonstrating ineffectiveness rests on Appellant.               Id.       To satisfy

this burden, Appellant must plead and prove by                a   preponderance of the

evidence that: "(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued               by counsel      did   not have some

reasonable basis designed to effectuate his interests; and, (3) but for

counsel's ineffectiveness, there is   a   reasonable probability that the outcome

of the challenged proceedings would have been different." Commonwealth

v.   Fulton, 830 A.2d 567, 572   (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant's ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).



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      First, Appellant must meet the "arguable merit" prong. "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, 645

A.2d 189, 194 (Pa. 1994) (citation omitted).                  "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)

(internal citation omitted).

      Second, Appellant must meet the "no reasonable basis" prong.                            We

apply the "reasonable basis" test to determine whether counsel's chosen

course was designed to effectuate his client's interests.               Pierce, supra at

194 -95.   "If    we conclude that the particular course chosen by counsel had

some reasonable basis, our inquiry ceases and counsel's assistance is

deemed effective."        Id. (citation omitted)
      Third, Appellant must meet the "prejudice" prong.                          "Prejudice    is

established when [a defendant] demonstrates that counsel's chosen course

of action had an adverse effect on the outcome of the proceedings."

Commonwealth v. Chambers, 807 A.2d 872, 883                        (Pa. 2002) (quotation

marks and citation omitted).            "The defendant must show that there is                 a


reasonable probability that, but for counsel's unprofessional errors, the

result of the          proceeding would        have    been   different."        Id. (quoting
Strickland       v.    Washington, 466        U.S. 668, 694 (1984)).         "A reasonable



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probability    is    a   probability sufficient to undermine confidence in the

outcome." Id. "[A] criminal defendant 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." Id. (quoting Commonwealth v. Kimball,

724 A.2d 326, 331 (Pa. 1999)).

        In his first issue, Appellant contends that his trial counsel was

ineffective for failing to file           a   Motion to Suppress his statement to police

based on violations of his rights under the Fifth Amendment and                       Miranda.'
Appellant's Brief at 17 -18.          Relying on           Commonwealth v. Zook, 553 A.2d
920 (Pa. 1989), Appellant claims that officers continued questioning him

after he invoked his right to counsel.                      Appellant's Brief at 20 -21.     After

careful review, we conclude that Appellant's underlying suppression claim

lacks arguable merit.

        "The law is well -settled that           a    defendant who requests counsel at any

time during    a     custodial interview         is   not subject to further interrogation by

the authorities until counsel has been made available to him, unless the

accused       himself         initiates       further       communication,     exchanges,           or

conversations with the police."                 Commonwealth v. Edwards, 903 A.2d
1139,    1150 (Pa.       2006) (citation and quotation marks omitted).                         Our

Supreme Court has previously held "that                          a   confession given after         a


defendant invokes his right to counsel need not be suppressed where the

' Miranda     v.    Arizona, 384      U.S. 436 (1966).



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defendant: (1) initiated further communication, exchanges, or conversations

with the police, and (2) knowingly and intelligently waived the right to

counsel." Id.

     The record indicates that Appellant initiated further conversation with

police and then knowingly and intelligently waived his right to counsel.      As

the PCRA Court summarized, "The record shows that Appellant was given his

Miranda rights and he waived his rights. Appellant voluntarily spoke to the

police." PCRA Court Opinion at   5   (citation omitted).

     Additionally, Appellant previously spoke to the police and successfully

terminated police questioning on one previous occasion regarding the

shooting.   See N.T. Trial, at 628 -37.       On August 8, 2006, police brought

Appellant in for questioning again.          With respect to this issue, Criminal

Investigator Angel Cabrera testified,   in   relevant part, as follows:

     A: [...] I was advised that [Appellant] was up at the desk in
     custody. As soon as I exited my office and I'm going out in the
     hallway, I believe it was Officer Bowers who was bringing down
     [Appellant] already in handcuffs. So at that time I had taken --
     it was me, Officer Bowers, and [Appellant]. And I opened the
     door to the main section and I had escorted him to Interview
     Room Number 1 in the main section of the criminal
     investigations division.

      Q: And what happened at that point?

     A: And at that point he sat there. We began -- I read him his
     Miranda rights. And as soon as I read him his Miranda Rights, I
     asked him three questions.     The first question was, do you
     understand your rights as I have explained them to you. He said
     yes. I said are you willing to give a statement was the second
     question. He said yes. And the third question was, do you wish
     to speak to me with a lawyer and have him present during any


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      questioning and /or statement. And he said that he wanted a
      lawyer. At that time, as soon as he sputtered out those words, I
      immediately got up and began to leave with Sergeant Guy
      Lehman.

      Q: Now, why did you do that? Why did you stop right there?

     A: Because once he invokes his rights, he wants a lawyer, it all
     gets terminated. There's no further conversations to take place.

      Q: What happened immediately after that?

     A: As soon as I got up to leave and I'm leaving, he says, where
     am I going. I said, I'm leaving. You wanted a lawyer. He goes
     no, I'll talk. So then I went in to further -- so that he wouldn't
     be confused, I explained further Question Number 3 pertaining
     to a lawyer. I explained to him if he wants a lawyer, we stop. If
     he does not want a lawyer, we can talk. I told him if he decided
     not to have a lawyer and he wants to talk and during the
     interview he changes his mind, to say, Angel, stop, I want a
     lawyer, and we will stop.

      Q: And after you made this explanation to him, what happened?

     A: He said no, I'll talk.

Id. at 639 -41. Investigator Cabrera then explained that    he read Appellant

his Miranda Rights, which Appellant waived, before taking Appellant's

written statement using   a   typewriter. Id. at 644.

     Appellant re- initiated this interaction with Investigator Cabrera after

invoking his right to counsel, and the record abundantly shows that

Appellant then proceeded to knowingly and intelligently waive his right to

counsel. Accordingly, police did not obtain Appellant's statement in violation

of his Fifth Amendment rights to remain silent and to counsel, and his

ineffectiveness claim lacks arguable merit.



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       Moreover, the PCRA court noted that counsel had                 a   reasonable basis

for not seeking suppression of Appellant's statement:                  Appellant's "written

statement to the police corroborated his theory of self- defense that trial

counsel could use as     a       prior consistent statement if his client testified and

was impeached."        PCRA Court Opinion at 5.              We agree.        Counsel also

assessed the merits of the suppression motion and "did not think Appellant's

statement was able to be suppressed because of the circumstances under

which it was taken."    Id. at      4 -5.   As a result, Appellant's   first ineffectiveness

claim fails.

       In his second issue, Appellant avers that his counsel was ineffective for

failing to ensure that       a    stenographer transcribed his preliminary hearing.

Appellant contends that this failure prevented him from cross -examining two

civilian eyewitnesses at trial and impeaching them based on contradictory

statements provided at the preliminary hearing. Appellant's Brief at 27.

      We conclude that Appellant failed to demonstrate any prejudice by

showing that there is        a    reasonable probability that the result of the trial

would have been different without counsel's error.

       First, Appellant cross -examined both witnesses at trial extensively,

including about their previous statements to Investigator Cabrera.                     N.T.

Trial, at 346 -69,     422 -58.         The    jury was, thus, well aware of any
inconsistencies in their previous statements.             Providing another source for




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the same information would           not   have changed             the outcome of the

proceedings.2

      Second, Appellant confessed to the shooting in                a   written statement,

and he admitted at trial that he shot the victim. See Commonwealth Exhibit

67; N.T. Trial, at 734 -37.

      Based on our review of the certified record, Appellant has failed to

demonstrate prejudice. Thus, his second ineffectiveness claim also fails.

      In his third issue, Appellant avers that his counsel was ineffective for

recommending    a   minimum sentence of 10 years' incarceration at Appellant's

sentencing hearing. Appellant argues that "counsel was ineffective when he

inexplicably requested   a    sentence more than twice as long as the low end of

the mitigated range and requested      a   sentence of at least 10 years in prison."

Appellant's Brief at 30          For support, Appellant repeats his sentencing

arguments, including citing his lack of criminal history, lack of maturity,

deep remorse, and gainful employment.            Id. at   30 -31.

      The parties agreed that Appellant's prior record score was zero, and

the offense gravity score was 14; the standard range of the guidelines was

from 72 to 240 months' incarceration.         N.T. Sentencing,          4/1/08, at 23, 33.


2  Appellant does not indicate what, if any, additional information was
presented at the preliminary hearing that was not produced in the witnesses'
prior statements or their trial testimony. This lack of specificity is also fatal
to Appellant's claim of prejudice. Commonwealth v. Lassen, 659 A.2d
999, 1007 (Pa. Super. 1995), abrogated on other grounds by
Commonwealth v. Stultz, 114 A.3d 865 (Pa. Super. 2015).


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After the Commonwealth presented victim impact testimony from several

witnesses, Appellant's counsel stated the following to the trial court:

      The standard range for the minimum for murder three is
      anywhere from six years[,] 72 months, up to 20 years, 240
      months. There's a reason that the court or legislature has done
      that and that's because every case is different, and the facts and
      circumstances of this particular case I don't think warrant the
      high end of the range. I think rather they require or rather
      warrant a lower end of the range.



      With respect to the hope of a life in the future, certainly making
      a   sentence of 22 to 44 [years], which is what the
      Commonwealth is seeking, basically sends a message that we
      have absolutely no hope of rehabilitation, we will max you out or
      give you the longest possible sentence because of the act and
      we don't care what happens in the future.

      I believe that my client is somebody worth saving.



      [Whether] those acts warrant the top of the standard range,
      which is what [the Commonwealth] wants, or whether they
      warrant a more hopeful sentence[,] a sentence that allows him
      to work [t]orward a future, I think is subject to debate.

      We're asking the court to consider a sentence of 10 to 20 [years]
      on murder three, and we're asking the court to consider
      consecutive sentence of one to two with respect to the firearms
      not to be carried without a license for a total sentence [of] 11 to
      22 [years] with the possessing instruments of crimes to run
      concurrent.

Id. at 26-29.
      In addressing Appellant's claim, the PCRA court stated the following:

      Appellant has failed to show that his trial counsel was ineffective
      at his sentencing hearing. This Court had broad discretion in
      imposing the sentence that we did. Appellant's sentence does
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      not exceed the lawful maximum sentence we could have
      imposed and it was not as long a sentence as requested by the
      Commonwealth. Trial counsel had a reasonable strategy to
      request the minimum sentence.... Appellant fails to show how
      he was prejudiced by counsel's actions.

PCRA Court Opinion at 6. We agree.

      Appellant failed to demonstrate that counsel lacked   a   reasonable basis

for his sentencing recommendation.         Our review of the certified record

shows that counsel's strategy was reasonable in light of the statutory

maximum sentence to which Appellant was exposed, the sentencing

guidelines and applicable standard range, the potential for consecutively

imposed   sentences,    and   the other    relevant circumstances unique to

Appellant and his criminal conduct.

      The record     supports the PCRA court's findings and its Order is

otherwise free of legal error. Accordingly, we affirm.

      Order affirmed.


Judgment Entered.




J: sephD. Seletyn,
Prothonotary

Date: 1/17/2017




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