Com. v. Velquez, V. ( 2023 )

J-S40011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR VELQUEZ :
:
Appellant : No. 1143 EDA 2021
Appeal from the PCRA Order Entered May 27, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000105-2018
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 10, 2023
Victor Velquez appeals from the Philadelphia County Court of Common
Pleas’ order denying his timely first petition filed pursuant to the Post
Conviction Relief Act, 42 Pa. C.S.A. §§ 9541-9546 (“PCRA”). Velquez argues
the PCRA court erred by dismissing his petition without first holding a hearing
on his two ineffective assistance of counsel claims. Specifically, Velquez claims
his appellate counsel was ineffective for failing to raise a claim on direct appeal
challenging the trial court’s ruling limiting the testimony of Velquez’s private
investigator at trial. He also claims that trial counsel was ineffective for failing
to properly advise him about a guilty plea before he rejected it. We agree with
the PCRA court that neither of these ineffectiveness claims offer Velquez any
basis for relief, and we therefore affirm.
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The facts underlying Velquez’s judgment of sentence were summarized
by this Court on direct appeal as well as the PCRA court, and those summaries
are supported by the record and not in dispute. Philadelphia Police Officers
Sharrod Davis and Amir Watson were on patrol when they observed Velquez
on a bridge holding a blue glassine package. After Officer Davis saw Velquez
sprinkle the contents of the package on his hand and snort them, the officers
exited their vehicle and approached Velquez. Velquez began to remove his
jacket, and as Officer Davis tackled Velquez to the ground, the officers heard
a metal clinking sound. Officer Davis recovered a loaded firearm from the
jacket, and Velquez informed the officers he did not have a license for the
firearm. The officers subsequently discovered the firearm had been stolen.
Velquez was arrested and charged with several offenses, including
possession of a firearm when he was legally prohibited from possessing one.
The matter proceeded to a jury trial, and the Commonwealth called Officer
Davis to testify. Velquez called Keary Willis, a private investigator who
investigated this case for Velquez, to testify. The parties stipulated that
Velquez had a prior conviction rendering it illegal for him to possess a firearm
and that the blue package recovered from the scene of the arrest tested
positive for heroin.
The jury convicted Velquez of the charge for possession of a firearm
when legally prohibited to possess one, and the court sentenced Velquez to
ten to 20 years’ imprisonment. Velquez filed a notice of direct appeal, and
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appellate counsel was appointed. This Court affirmed Velquez’s judgment of
sentence on December 3, 2019. See Commonwealth v. Velquez, 3508 EDA
2018 (Pa. Super. December 3, 2019) (unpublished memorandum).
Ten days later, Velquez filed a pro se PCRA petition. Counsel was
appointed, and filed an amended PCRA petition. The PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA petition without a
hearing, and subsequently denied the petition in an order dated May 27, 2021.
Velquez appealed, and both he and the PCRA court complied with Pa.R.A.P.
1925. Velquez raises these issues for our consideration:
A. Whether the court erred in denying [Velquez]’s PCRA petition
without an evidentiary hearing on the issues raised in the
amended PCRA petition regarding [counsels’] ineffectiveness.
B. Whether the PCRA court was in error in not granting relief for the
following reasons:
a. Whether Appellate Counsel was ineffective for failing to
appeal the trial court’s limiting the testimony of the
defendant’s private investigator.
b. Whether Trial Counsel was ineffective for advising the
defendant to not accept the guilty plea offer by the
Commonwealth.
Appellant’s Brief (PCRA court’s answers omitted).
Our review of an order dismissing a PCRA petition is limited to examining
whether the PCRA court’s determinations are supported by the record and the
court’s decision is free of legal error. See Commonwealth v. Shaw, 217
A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the
factual findings of the PCRA court and will not disturb those findings unless
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they have no support in the record, we apply a de novo standard of review to
the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147
A.3d 915, 919 (Pa. Super. 2016).
Further, the PCRA court is not required to hold an evidentiary hearing
prior to dismissing a petition as a petitioner is not entitled to a PCRA hearing
as a matter of right. See Shaw, 217 A.3d at 269. The PCRA court can decline
to hold a hearing if there is “no genuine issue concerning any material fact,
the petitioner is not entitled to PCRA relief, and no purpose would be served
by any further proceedings.” Id.
Velquez raises two ineffectiveness claims, and he asserts the PCRA court
should have held a hearing on those claims. Counsel is presumed to have been
effective. See Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003). In
order to overcome that presumption and prevail on a claim of ineffectiveness,
Velquez must establish that: (1) the underlying claim has arguable merit; (2)
counsel had no reasonable basis for their conduct; and (3) he was prejudiced
by counsel’s ineffectiveness, i.e. there is a reasonable probability that because
of the act or omission in question, the outcome of the proceeding would have
been different. See id. As is true for all petitioners, Velquez’s “failure to prove
any one of the three prongs results in the failure of [his] claim.”
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citation
omitted).
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Velquez first asserts the PCRA court should have held a hearing on his
assertion that appellate counsel was ineffective for failing to raise a claim
challenging the trial court’s discretionary decision to limit the testimony of his
private investigator. However, we agree with the PCRA court that Velquez was
not entitled to a hearing on this claim as he failed to show he was prejudiced
by appellate counsel’s failure to challenge the trial court’s evidentiary ruling.
Velquez’s presentation of the factual background of this claim in his
appellate brief is less than comprehensive.1 However, the PCRA court’s opinion
and the record reveal that Velquez called Willis, his private investigator and a
former police officer, to testify. Willis was not qualified as an expert. Shortly
after Willis began testifying, the court called for a recess, and requested that
defense counsel make an offer of proof regarding Willis’s intended testimony.
See N.T., 9/19/2019, at 68. Defense counsel represented that she planned to
introduce the Computer Assisted Dispatch (“CAD”), or transmission of the
radio dispatch, from the incident and to have Willis testify about alleged
inconsistencies in the CAD. See id. at 71-72.
The trial court noted that Willis was not at the scene of Velquez’s arrest
and had not prepared the CAD, and therefore could not authenticate the CAD.
____________________________________________
1 Velquez also does not provide the notes of testimony from his trial in this
matter's certified record, as is his burden to do. See Commonwealth v.
Shreffler, 249 A.3d 575, 584 (Pa. Super. 2021). However, the notes of
testimony from the trial can be found in the digital certified record of his direct
appeal. See Commonwealth v. Velquez, 3508 EDA 2018, J-S56025-19. We
referenced the notes of testimony found in that docket for our purposes here.
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See id. at 72, 76. Moreover, the court instructed counsel that it would be
improper for Willis to intrude on the province of the jury by offering his lay
opinion on the credibility of the arresting officers based on the CAD. See id.
at 77-78. Instead, the trial court explained that counsel could call one of the
arresting officers to introduce the CAD, as they had been involved in its
creation. See id. at 78-79. Defense counsel could then ask the officer about
any alleged inconsistencies in the CAD. See id.
Defense counsel proceeded to call Officer Watson to the stand to
introduce the CAD into evidence. Counsel questioned the officer about the
alleged inconsistency in the CAD, which counsel indicated was based on the
arresting officers apparently giving two different locations for Velquez’s arrest
during the radio dispatch. See id. at 102-103. Officer Watson explained that
the second location in the report was related to a totally separate incident.
See id. at 104.
Velquez now asserts, in effect, that the trial court abused its discretion
by limiting Willis’s testimony and that appellate counsel was ineffective for
failing to challenge this ruling on direct appeal. The PCRA court flatly rejected
Velquez’s claim, finding, inter alia, that Velquez had not shown how he was
prejudiced by the court’s ruling and therefore by counsel’s failure to challenge
that ruling on direct appeal. We agree Velquez has not established prejudice.
As explained by the Commonwealth:
Despite the court prohibiting [Velquez] from introducing the police
report through [Willis], he was able to introduce it through the
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police officer who wrote the report and examine that officer
regarding any alleged inconsistencies. Therefore, [Velquez]
cannot establish that he was prejudiced by counsel not raising the
issue on direct appeal where the information he sought to elicit
was brought out through the testimony of another witness.
Commonwealth’s Brief at 10. The PCRA court, in a similar vein, simply stated
“[s]ince [Velquez] introduced the denied evidence through Officer Watson,
[he] was not prejudiced.” PCRA Court Opinion, 3/3/2022, at 7.
Velquez does not challenge these conclusions, nor does he cogently
explain how the PCRA court erred in finding he had not been prejudiced by
appellate counsel’s failure to challenge the trial court’s ruling on appeal.
Because Velquez has not shown he was prejudiced by counsel’s conduct, he
was not entitled to an evidentiary hearing on the ineffectiveness claim. See
Ousley, 21 A.3d at 1244 (Pa. Super. 2011); Shaw, 217 A.3d at 269.
Velquez also argues trial counsel was ineffective for failing to advise him
fully about the plea offered by the Commonwealth, which he rejected.
According to Velquez, trial counsel informed Velquez of the offer by stating,
“The D.A. has made an offer, it’s for [eight to 16] years, but we’re going to
trial, right?” Appellant’s Brief at 17. It appears Velquez is contending this was
the full extent of the discussion of the plea offer, and he complains counsel’s
failure to more thoroughly explain the plea offer deprived him of the right to
make a reasonable decision about whether to accept the plea. This claim fails.
In the first place, Velquez’s argument in support of his claim consists
mainly of bald assertions and an underdeveloped analysis. He does not, as the
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Commonwealth points out, attempt to describe the circumstances surrounding
the plea offer or the alleged statement made by counsel. His claim is arguably
waived for these reasons. See Commonwealth v. Love, 896 A.2d 1276,
1287 (Pa. Super. 2006) (stating that arguments that are not sufficiently
developed are waived).
In any event, we see no error in the PCRA court’s conclusion that
Velquez failed to establish he was prejudiced by counsel’s conduct regarding
the plea offer. As both the PCRA court found and the Commonwealth argues,
Velquez does not aver he “would have been willing to accept this plea had
counsel discussed the risks of going to trial. [Velquez therefore] failed to prove
that he would have accepted the plea had [ ] it not been for trial counsel’s
conduct.” PCRA Opinion, 3/3/2022, at 8. See Lafler v. Cooper, 566 U.S. 156,
164 (2012) (stating that in order to establish the prejudice prong of a claim
that counsel was ineffective for failing to provide competent advice concerning
a plea offer that is ultimately rejected, the defendant must show there is a
reasonable probability that he would have accepted the plea offer if he had
been competently advised regarding the plea offer); see also
Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (applying
Lafler to claims made under Pennsylvania’s PCRA). Accordingly, as with his
first ineffectiveness claim, Velquez’s claim that counsel provided ineffective
representation as it relates to the plea offer offers him no basis for relief.
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Further, as our analysis of both claims does not rely on any disputed issue of
material fact, Velquez was not entitled to a hearing on either claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2023
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