J-S06023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

PETER BIENVIENIDO ROJAS

                            Appellant                 No. 2735 EDA 2015


                  Appeal from the PCRA Order August 17, 2015
                 in the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002191-2009


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                              FILED APRIL 28, 2017

        Appellant, Peter Bienvienido Rojas, appeals from the order entered

August 17, 2015, denying his petition for collateral relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, following a trial

resulting in his conviction for second degree murder and robbery. 1         We

affirm.

        A more detailed recitation of the facts may be found in the PCRA

court’s opinion. See PCRA Court Opinion (PCO), 9/15/11, at 3-5. On May

28, 2009, the body of Mark Holdren was discovered in Allentown,

Pennsylvania.      He had been stabbed multiple times.         Later that day,

Appellant voluntarily went to the Allentown police headquarters to report

____________________________________________


1
    18 Pa.C.S. §§ 2502(b), 3701.


*
    Former Justice specially assigned to the Superior Court.
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what he claimed was an attempted robbery.        Appellant told police officers

that he had been hit in the head from behind, pulled his knife in self-

defense, and stabbed his assailant. Inconsistencies in Appellant’s story, as

well as particular details he related to officers, led police officers to arrest

Appellant for Mr. Holdren’s murder.

      Appellant was charged with criminal homicide and robbery.         Prior to

trial, Appellant litigated an omnibus pre-trial motion seeking, among other

things, to suppress his statement made to police officers.       Appellant also

sought to admit evidence that Mr. Holdren had a Department of Public

Welfare ACCESS card and had stayed at the Allentown Rescue Mission.

Appellant’s motion was denied.

      At trial, jurors viewed a videotape of the crime scene.         The jury

convicted Appellant of second-degree murder and robbery.              Appellant

received a mandatory sentence of life imprisonment for felony murder and a

concurrent sentence of ten to twenty years of incarceration for robbery.

Appellant timely filed post-sentence motions challenging the robbery

sentence. The trial court vacated the merged robbery sentence and denied

Appellant’s remaining issues.

      Appellant’s judgment of sentence was affirmed by this Court.         See

Commonwealth v. Rojas, 68 A.3d 362 (Pa. Super. 2013) (unpublished

memorandum), appeal denied, 72 A.3d 603 (Pa. 2013).

      Appellant subsequently filed a motion for post-conviction DNA testing,

which the court denied.    Appellant timely filed the instant petition seeking

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PCRA relief.   Counsel was appointed and filed an amended petition.          In

March 2015, the PCRA court held an evidentiary hearing.

      Trial counsel, John Baurkot, testified that he did not object to the

introduction of the crime scene video because he was concerned about the

possibility of Appellant being convicted for first degree murder and facing the

death penalty.     See Notes of Testimony (N.T.), 3/20/15, at 10-11.

Specifically, Mr. Baurkot felt that evidence the victim had been able to walk

away from the crime scene to seek help would support his argument that

Appellant did not have specific intent to kill. Id. at 11. Further, Mr. Baurkot

did not request an instruction on the video because he did not want to draw

further attention to it, as the jury was death penalty qualified and thus likely

to be more conservative. Id. at 16-17.

      With regard to the statements Appellant made to police, Mr. Baurkot

testified he did not object to the statement so that Appellant’s side of the

story could be read to the jury without subjecting Appellant to cross-

examination, as Appellant had a prior conviction for robbery. Id. at 30-31.

Following the hearing, the court denied Appellant’s petition.

      Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         The trial

court issued a responsive opinion.

      On appeal, Appellant presents the following questions for our review:

      1. Was [Appellant] denied his right to the effective assistance of
      counsel under Article 1, § 9 of the Pennsylvania Constitution and
      the Sixth Amendment to the United States Constitution where

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     counsel failed to timely object to the introduction of the
     videotape of the crime scene at trial and/or for failing to request
     a curative or cautionary instruction from the court?

     2. Did the PCRA court erred [sic] where it denied [Appellant]’s
     claim that trial counsel was ineffective for failing to properly
     cross-examine Commonwealth witnesses and for failing to
     properly argue the pretrial motion to suppress? And was
     appellate counsel was [sic] ineffective for failing to raise this
     issue on direct appeal?

     3. Was trial counsel ineffective in failing to prepare for and
     effectively argue that decedent’s ACCESS and Rescue Mission
     records were admissible?

     4. Was PCRA counsel ineffective for failing to hire a qualified
     forensic toxicologist to testify at the evidentiary hearing?

     5. [Appellant] was denied his right to effective assistance of
     counsel when under Article 1, § 9 of the Pennsylvania
     Constitution and the 6th Amendment to the United States
     Constitution where direct and PCRA appeal counsels [sic] failed
     to challenge the legality of Appellant’s sentence.

Appellant’s Brief at 9-10 (unnecessary capitalization and responsive answers

omitted).

     We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.   Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

     We presume counsel is effective.     Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

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the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) that counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

     First, Appellant claims that trial counsel was ineffective for failing to

timely object to the introduction into evidence of crime scene videotapes

that showed the victim’s body.     See Appellant’s Brief at 16.     Appellant

argues that video tapes have more weight than photographs, and that

accordingly, the admission of the video prejudiced him. Id. at 16-18.

     In determining the admissibility of photographs of a murder victim, the

court must employ a two-part analysis:

     First[,] a court must determine whether the photograph is
     inflammatory. If not, it may be admitted if it has relevance and
     can assist the jury’s understanding of the facts.         If the
     photograph is inflammatory, the trial court must decide whether
     or not the photographs are of such essential evidentiary value



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       that their need clearly outweighs the likelihood of inflaming the
       minds and passions of the jurors . . .

See Commonwealth v. Mollett, 5 A.3d 291, 301-302 (Pa. Super. 2010).

       On direct appeal, Appellant challenged the admission of the tapes,

arguing that they were inflammatory and prejudicial. See Rojas, 68 A.3d

362 at *10.       Although the Court found the issue waived for failure to

contemporaneously object to the admission of the tapes, the Court also

addressed the merits, concluding:

       The video is consonant with the severity of a homicide crime
       scene. However, it does not rise to the level of inflammatory
       and overwhelmingly prejudicial evidence that would inflame the
       minds of the jury. The video plainly would aid the jury in its
       ability to understand the Commonwealth’s evidence and is not
       overly gruesome.      Indeed, we agree with the trial court’s
       assessment that the video was “essentially a video recording of
       the evidence collection[.]”

See Rojas, 68 A.3d 362 at *13. Following a review of the record, we see

no error in this conclusion. Counsel cannot be deemed ineffective for failing

to raise a meritless claim.       Commonwealth v. Fears, 86 A.3d 795, 804

(Pa. 2014).2

       Next, Appellant argues that the PCRA court erred when it denied his

claim that trial counsel was ineffective for failing to cross-examine Officer
____________________________________________


2
  Appellant’s argument that spectators were upset by the videotape and he
was prejudiced as a result is equally meritless. As the PCRA court, which
also presided over the trial noted, “the reaction to the viewing of the
videotape by the spectator was not shrieking, sobbing or crying out.
Instead, approximately 4 minutes and 45 seconds after the videotape began,
two or three muffled sobs were heard on the audio recording.” See PCO at
11 (emphasis in original).



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Berger and file pre-trial motions to suppress Appellant’s statements to

police.    See Appellant’s Brief at 21.          Appellant contends that he was in

custody at the time of his interrogation and Officer Berger’s failure to read

him Miranda3 warnings.          Id. at 22.     Further, he claims appellate counsel

was ineffective for failing to litigate this issue on direct appeal. Id.

        A suspect is entitled to Miranda warnings prior to a custodial

interrogation. Commonwealth v. Boyer, 962 A.2d 1213, 1216 (Pa. Super.

2008). “A person is considered to be in custody for purposes of Miranda

when the officer’s show of authority leads the person to believe that [he]

was not free to decline the officer’s request, or otherwise terminate the

encounter.”     Commonwealth v. Page, 965 A.2d 1212, 1218 (Pa. Super.

2009).

        Here, Appellant was not in custody for purposes of Miranda.             He

voluntarily presented himself at the police station to report a robbery and

give a report. As the PCRA court noted,

        Upon review of the totality of the circumstances surrounding
        [Appellant’s] interaction with Officer Berger, we do not believe
        that the officer was required to issue Miranda warnings.
        [Appellant], of his own accord, appeared at the police station to
        report that he was the victim of a robbery. Officer Berger
        initially dealt with [Appellant] as a victim and allowed [Appellant]
        to tell him his version of the events in question. When Officer
        Berger eventually came to suspect that [Appellant] knew more
        about the homicide on Jute Street, he confirmed the information

____________________________________________


3
    Miranda v. Arizona, 86 S. Ct. 1602 (1966).



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      he had been given and contacted detectives to further the
      homicide investigation.

PCO at 14 (emphasis in original).      We see no error in this conclusion.

Accordingly, counsel cannot be found ineffective for failure to litigate a

meritless claim. Fears, 86 A.3d at 804.

      Next, Appellant claims that trial counsel was ineffective in failing to

prepare for and effectively argue that the victim’s ACCESS and Rescue

Mission records were admissible.     See Appellant’s Brief at 28.   Appellant

argues that counsel “picked an argument that could not win,” and that, if

counsel had argued that the evidence was admissible as evidence of the

victim’s state of mind, the evidence would have been admitted.            Id.

Appellant claims the records contained evidence of Mr. Holdren’s psychiatric

history and history of drug abuse and that several hearsay exceptions would

have allowed for the admission of this evidence. Id. at 29. This argument

lacks arguable merit.

      We note, initially, that Appellant’s characterization of trial counsel’s

actions is incorrect.   He asserts trial counsel’s argument that the records

were admissible as prior bad acts was imprudent and could not win.       See

Appellant’s Brief at 28. However, an examination of the record reflects that

trial counsel did not raise prior bad acts as an argument for admissibility.

This argument was raised by appellate counsel on direct appeal.        During

argument on the motion in limine, trial counsel argued 1) that Mr. Holdren’s

ACCESS card was empty of benefits at the time of his death, and 2) the

questionnaire Mr. Holdren filled out at the Rescue Mission indicated that he

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was addicted to heroin, had not done drugs in a year, and was without

money. See N.T., 3/3/11, at 31-33. As the autopsy of Mr. Holdren revealed

cocaine in his system, trial counsel argued this evidence was relevant to

show that Mr. Holdren was the aggressor and that Appellant had acted in

self-defense. Id. at 33-34.

      In reviewing the denial of a motion in limine, “we apply an evidentiary

abuse of discretion standard of review.” Commonwealth v. Owens, 929

A.2d 1187, 1190 (Pa. Super. 2007). The admission of evidence is within the

sound discretion of the trial court and will not be overturned absent an

abuse of that discretion. Id. Evidence is admissible if it is relevant, and if

its probative value outweighs unfair prejudice.    See Commonwealth v.

Tyson, 119 A.3d 353, 358 (Pa. Super. 2015). Evidence is relevant if it has

a tendency to make a fact more or less probable than it would be without

the evidence, and the fact is of a consequence in determining the action.

Id.; see also Pa.R.E. 401.     “Evidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue more or

less probable or supports a reasonable inference or presumption regarding a

material fact.” Tyson, 119 A.3d at 358 (internal citation omitted).

      The trial court found the evidence at issue irrelevant to Appellant’s

claim of self-defense. See PCO at 15-16. On appeal, this Court also found

that evidence of the victim’s financial struggles irrelevant to the issue of

whether he would have attacked Appellant. See Rojas, 68 A.3d 362, *5.

We find no error in this conclusion. Johnson, 966 A.2d at 533.

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      Appellant’s arguments regarding the victim’s alleged “psychiatric

history” are equally unavailing. At best, Appellant has established that Mr.

Holdren filled out a questionnaire indicating he was addicted to heroin. At

the hearing, counsel also indicated the questionnaire may have stated that

Mr. Holdren suffered from suicidal ideation and depression.           See N.T.,

3/11/11, at 35.    This evidence would not establish that Mr. Holdren was

more likely to have attacked Appellant and, accordingly, was not relevant to

Appellant’s claim of self-defense.    See Tyson, 119 A.3d at 358.          Thus,

Appellant is not entitled to relief on this claim, as the underlying legal issue

is without arguable merit. Johnson, 966 A.2d at 533.

      Next, Appellant argues that PCRA counsel was ineffective for failure to

hire a qualified forensic toxicologist to testify at the evidentiary hearing that

Mr. Holdren’s cocaine use, combined with methadone and “his untreated

psychiatric conditions,” would have made him aggressive. See Appellant’s

Brief at 33.   He contends that, backed by an expert’s testimony, his self-

defense claim would have been more compelling than his denial of guilt. Id.

at 34.   Appellant claims that he requested PCRA counsel raise this issue

before the court but that she refused to do so. Id. at 33-34.

      To establish ineffective assistance of counsel for failure to call a

witness, the petitioner must establish 1) the witness existed; 2) the witness

was available to testify for the defense; 3) counsel knew of, or should have

known of the existence of the witness; 4) the witness was willing to testify

for the defense; and 5) the absence of the testimony of the witness was so

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prejudicial   as   to   have    denied    the     petitioner   a   fair   trial.   See

Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012). With regard to

expert witnesses, the defendant must articulate what evidence was available

and identify the witness who was willing to offer such evidence.                   See

Commonwealth v. Gwynn, 723 A.2d 143, 151 (Pa. 1998).

      Here, Appellant has failed to meet the standard to establish ineffective

assistance.   Appellant has not provided the name of the toxicologist he

would have called or any evidence that the toxicologist would have testified

on his behalf at trial.   Nor has Appellant detailed any medical or scientific

testimony beyond a bald assertion that a toxicologist “could have proven”

that cocaine would have made Mr. Holdren aggressive. Accordingly, he has

not established ineffective assistance of counsel.         See Sneed, 45 A.3d at

1109; Johnson, 966 A.2d at 533.

      Finally, Appellant argues that he was denied his right to effective

assistance of counsel where appellate counsel and PCRA counsel failed to

challenge the legality of his sentence.             See Appellant’s Brief at 36.

Appellant claims he did not have formal and specific notice of the charges

against him, because he was accused with the “open” charge of criminal

homicide, 18 Pa.C.S. § 2501, but found guilty of second degree murder, 18

Pa.C.S. § 2502(b).        Id.   Appellant also claims that a sentence of life

imprisonment imposed pursuant to 18 Pa.C.S. § 1102(b) is unlawful.

      As Appellant did not raise this claim in his PCRA petition or in his

1925(b) statement, it is waived for purposes of appeal. Washington, 927

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A.2d at 601; see also Pa.R.A.P. 302 (stating “issues not raised in the lower

court are waived and cannot be raised for the first time on appeal”); see

also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any

issues not raised in a [Rule] 1925(b) statement will be deemed waived.”).

      Additionally, Appellant claims that PCRA counsel was ineffective in her

representation. However, claims of PCRA counsel’s ineffectiveness may not

be raised for the first time on appeal. Commonwealth v. Henkel, 90 A.3d

16, 20 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014).

Accordingly, Appellant is not entitled to relief on these claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2017




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