J-S07029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

JOSE ALBERT CASTRO

                          Appellant                No. 1682 MDA 2013


                 Appeal from the PCRA Order August 28, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000463-2010

BEFORE: BENDER, P.J.E., OLSON and OTT, JJ.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 09, 2015

      Appellant, Jose Albert Castro, appeals pro se from the order entered

on August 28, 2013 dismissing his petition for relief filed pursuant to the

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

      This Court has previously outlined the factual background of this case

as follows:

      Appellant was involved in the business of selling drugs. The
      decedent bought drugs from Appellant and owed him money.
      Three days before the [decedent’s] shooting, Appellant told a
      witness named Ismael Sanchez, a.k.a. Coco, that Appellant was
      going to kill the decedent if he did not pay Appellant.

      On the day of the incident, Coco watched Appellant shoot the
      decedent. Also Braulio Ortiz saw Appellant walk towards the
      decedent and shoot him multiple times. Medical evidence later
      showed the decedent died from the shooting.
J-S07029-15


Commonwealth v. Castro, 43 A.3d 528 (Pa. Super. 2012) (unpublished

memorandum), at 1-2, appeal denied, 49 A.3d 441 (Pa. 2012), cert denied,

133 S. Ct. 871 (2013).

        The procedural history of this case is as follows.   On February 18,

2010, Appellant was charged via criminal information with first-degree

murder1 and third-degree murder.2 On September 16, 2010, Appellant was

found guilty of first-degree murder. On November 30, 2010, Appellant was

sentenced to life imprisonment without the possibility of parole.        On

December 9, 2010, Appellant filed a post-sentence motion which was denied

on May 6, 2011.        This Court affirmed his judgment of sentence, our

Supreme Court denied allocatur, and the Supreme Court of the United States

denied certiorari.

        On January 28, 2013, Appellant filed a pro se PCRA petition. Counsel

was appointed. On May 6, 2013, counsel filed a no merit letter and motion

to withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc). On May 29, 2013, the PCRA court issued notice, pursuant

to Pennsylvania Rule of Criminal Procedure 907(1), of its intent to dismiss

the petition without an evidentiary hearing.   On that same day, the PCRA

court granted counsel’s motion to withdraw.      Appellant responded to the


1
    18 Pa.C.S.A. § 2502(a).
2
    18 Pa.C.S.A. § 2502(c).


                                     -2-
J-S07029-15


PCRA court’s Rule 907 notice on June 13, 2013, raising PCRA counsel’s

ineffectiveness in multiple areas.      On August 28, 2013, the PCRA court

dismissed Appellant’s petition. Appellant filed a timely notice of appeal.3 On

August 13, 2014, this Court dismissed the appeal because Appellant failed to

file a brief. On August 28, 2014, this Court reinstated the appeal.

      Appellant presents one issue for our review:

      Did the      PCRA court err in dismissing the petition without a
      hearing,     and was PCRA counsel ineffective, where Appellant
      raised a     meritorious issue of trial counsel’s ineffectiveness for
      failing to   present exculpatory evidence to the jury?

Appellant’s Brief at 4 (complete capitalization removed).

      “Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s findings of fact, and whether the PCRA

court’s determination is free of legal error.” Commonwealth v. Wantz, 84

A.3d 324, 331 (Pa. Super. 2014) (citation omitted). “The scope of review is

limited to the findings of the PCRA court and the evidence of record, viewed

in the light most favorable to the prevailing party at the trial level.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

3
  On September 24, 2013, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”).       See
Pa.R.A.P. 1925(b).       On October 17, 2013, Appellant filed his concise
statement. On November 22, 2013, the PCRA court issued its Rule 1925(a)
opinion. In its brief, the Commonwealth contends that Appellant’s lone issue
on appeal was not included in his concise statement. Although the wording
of the question presented by Appellant differs from the wording used in his
concise statement, a fair reading of the concise statement includes
Appellant’s lone issue raised on appeal. Therefore, Appellant’s lone issue is
not waived for appellate review. Cf. Pa. Nat’l Mut. Cas. Ins. Co. v. St.
John, 2014 WL 7088712, *24 n.7 (Pa. Dec. 15, 2014).


                                        -3-
J-S07029-15


      Appellant’s lone claim on appeal is that his trial counsel rendered

ineffective assistance.4 Our Supreme Court has explained:

      [T]o prove counsel ineffective, [a PCRA] petitioner must
      demonstrate: (1) the underlying claim has arguable merit; (2)
      no reasonable basis existed for counsel’s actions or failure to
      act; and (3) the petitioner suffered prejudice as a result of
      counsel’s error such that there is a reasonable probability that
      the result of the proceeding would have been different absent
      such error. Counsel is presumed to have rendered effective
      assistance.

      A court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead,
      if a claim fails under any necessary element of the
      ineffectiveness test, the court may proceed to that element first.
      Finally, counsel cannot be deemed ineffective for failing to raise
      a meritless claim.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations

omitted).

      Appellant argues that his trial counsel was ineffective for failing to

show the jury videos taken by cameras owned by the Community Progress

Council.    He argues those videos show a different individual at the crime

scene immediately after the murder occurred. This claim is without arguable

merit.      The certified record reflects that two videos taken from the

Community Progress Council were played for the jury and that the third

camera was broken and did not produce any relevant recording.               N.T.,


4
  Appellant also claims his PCRA counsel rendered ineffective assistance by
failing to pursue the claim of his trial counsel’s ineffectiveness. As we
conclude that trial counsel rendered effective assistance, PCRA counsel was
not ineffective for failing to pursue this claim. See Commonwealth v.
Perez, 103 A.3d 344, 350 (Pa. Super. 2014).


                                     -4-
J-S07029-15


9/14/10, at 300-303;5 N.T., 9/15/10, at 348-351, 354-355; Defendant’s

Exhibits 1 and 2. As the jury saw the videos, Appellant’s claim that his trial

counsel was ineffective for failing to present the videos to the jury is without

arguable merit.     Furthermore, as the jury saw the videos, Appellant is

unable to prove the requisite prejudice to prevail on an ineffective assistance

of counsel claim.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2015




5
  The notes of testimony from the trial are contained in one volume. We cite
to the correct date and the page number as reflected in the single volume.


                                     -5-
