Com. v. Colon-Plaza, H. ( 2019 )


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  • J-S36007-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    HECTOR COLON-PLAZA                         :
    :
    Appellant               :   No. 1415 MDA 2018
    Appeal from the PCRA Order Entered July 26, 2018
    In the Court of Common Pleas of Lancaster County
    Criminal Division at No(s): CP-36-CR-0002452-2014
    BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.
    MEMORANDUM BY PANELLA, P.J.:                        FILED NOVEMBER 07, 2019
    Appellant, Hector Colon-Plaza, challenges the order entered in the
    Lancaster County Court of Common Pleas, denying his first petition filed
    pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
    9546. He alleges trial counsel rendered ineffective assistance by failing to
    object to the Commonwealth’s reference to Appellant’s right to remain silent.
    We affirm.
    A previous panel of this Court recounted the facts and procedural history
    of this case:
    In 2010, Appellant pled guilty to two counts of indecent assault of
    a minor and received two years’ probation, which he completed.
    On April 17, 2014, the Pennsylvania Office of Attorney General
    (“OAG”) obtained a search warrant for Appellant’s residence on
    evidence that OAG law enforcement software enabling agents to
    detect the location of computers offering child pornography for
    ____________________________________________
       Retired Senior Judge assigned to the Superior Court.
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    download had twice during a four-month period downloaded
    videos and images of child pornography offered from an internet-
    based, peer-to-peer file-sharing program in use at Appellant’s
    residence. Pursuant to a court order, Comcast Cable
    Communications supplied account information naming Appellant
    as the wireless internet subscriber. Authorities further determined
    that wireless internet access from this address was locked and
    required a password.
    Appellant shared the residence with his girlfriend, Angela
    Gonzalez, and she was home when authorities executed the
    search warrant. OAG agents confiscated a non-functioning digital
    tablet, three cell phones, and two laptop computers, one of which
    was stored in a hallway closet. It was this HP laptop, alone, which
    contained an Ares file-sharing program, and within this program
    were files containing the two videos and two images of child
    pornography captured by the OAG computer. Further examination
    of the laptop disclosed a username of “HECTOR,” a most recent
    log-on under this username of April 16, 2014, just one day before
    service of the warrant, and placement of the child pornography
    files in a file path under this username. N.T. Trial, 3/3/15, at 205–
    08.
    OAG agents obtained Appellant’s work address from Ms. Gonzalez
    and interviewed him at his office after advising him of his Miranda
    rights, which he temporarily waived. In his recorded statement,
    Appellant admitted that he and Ms. Gonzalez kept two computers
    and one digital tablet in the residence and knew each other’s
    passwords. He denied recent use of the HP laptop computer stored
    in the hall closet, although he admitted to knowing its password
    and using it in the past to share music and video files.
    Authorities arrested Appellant and charged him with two counts of
    disseminating child pornography in addition to the charges
    referenced above. On March 4, 2015, a jury found Appellant not
    guilty of disseminating child pornography but guilty on all counts
    of possession of child pornography and criminal use of
    communication facilities. Prior to sentencing, the Commonwealth
    notified Appellant that it would seek a mandatory minimum
    sentence of 25 years under [42 Pa.C.S.A. § 9718.2,] a recidivist
    statute addressing sexual offenders. At Appellant’s sentencing
    hearing, the court noted that a Sexual Offenders Assessment
    Board determined Appellant was not a sexually violent predator.
    Nevertheless, finding Appellant was a recidivist sex offender as
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    contemplated under the mandatory minimum sentencing scheme,
    the court imposed a mandatory 25 to 50–year term of
    incarceration.
    Commonwealth v. Colon-Plaza, 
    136 A.3d 521
    , 524-525 (Pa. Super. 2016)
    (footnotes omitted).
    This Court affirmed the judgment of sentence, and Appellant did not file
    a petition for allowance of appeal to the Pennsylvania Supreme Court. Instead,
    he filed the instant PCRA petition, alleging the ineffectiveness of trial counsel.
    Appellant then retained counsel, who filed an amended petition.
    The PCRA court held an evidentiary hearing. At the conclusion of the
    hearing, the PCRA court ordered the parties to file briefs. Ultimately, the court
    denied relief, and Appellant filed a timely notice of appeal. This matter is now
    properly before us.
    Appellant’s sole issue on appeal challenges the effectiveness of trial
    counsel. However, before we are able to address it, we must determine
    whether the petition was timely filed.
    We begin by addressing the timeliness of Appellant’s petition. A PCRA
    petition is timely if it is filed within one year of the date the petitioner’s
    judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). “A
    judgment becomes final at the conclusion of direct review, including
    discretionary review in the Supreme Court of the United States and the
    Supreme Court of Pennsylvania, or at the expiration of time for seeking the
    review.” Commonwealth v. Callahan, 
    101 A.3d 118
    , 122 (Pa. Super. 2014)
    (citation omitted).
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    Here, a previous panel of this Court affirmed Appellant’s judgment of
    sentence. He did not file a petition for allowance of appeal to the Pennsylvania
    Supreme Court. His judgment of sentence became final on March 26, 2016,
    thirty days after this Court issued its opinion, when his time for filing a petition
    for allowance of appeal with the Pennsylvania Supreme Court expired. See
    Pa.R.A.P. 1113(a). Appellant’s PCRA petition, filed on February 22, 2017, is
    therefore timely.
    We proceed to the merits of Appellant’s claim. “Our standard of review
    for issues arising from the denial of PCRA relief is well-settled. We must
    determine whether the PCRA court’s ruling is supported by the record and free
    of legal error.” Commonwealth v. Presley, 
    193 A.3d 436
    , 442 (Pa. Super.
    2018) (citation omitted). In doing so, we read the record in the light most
    favorable to the prevailing party. See Commonwealth v. Ford, 
    44 A.3d 1190
    , 1194 (Pa. Super. 2012). If this review reveals support for the PCRA
    court’s credibility determinations and other factual findings, we may not
    disturb them. See Commonwealth v. Henkel, 
    90 A.3d 16
    , 20 (Pa. Super.
    2014). We, however, afford no deference to the PCRA court’s legal
    conclusions. See 
    id.
    Appellant’s sole argument on appeal is that the PCRA court erred in
    concluding he had failed to establish that his trial counsel had been ineffective
    for failing to object to the presentation of his recorded statement to the jury.
    We presume counsel’s effectiveness, and an appellant bears the burden of
    proving otherwise. See Commonwealth v. Brown, 
    161 A.3d 960
    , 965 (Pa.
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    Super. 2017). “In order for Appellant to prevail on a claim of ineffective
    assistance of counsel, he must show, by a preponderance of the evidence,
    ineffective assistance of counsel which so undermined the truth-determining
    process that no reliable adjudication of guilt or innocence could have taken
    place.” Presley, 193 A.3d at 442 (citation omitted).
    To establish ineffectiveness of counsel, a PCRA petitioner must plead
    and prove: his underlying legal claim has arguable merit; counsel’s actions
    lacked any reasonable basis; and counsel’s actions prejudiced him. See
    Commonwealth v. Spotz, 
    18 A.3d 244
    , 260 (Pa. 2011). Failure to satisfy
    any prong of the ineffectiveness test requires dismissal of the claim. See
    Commonwealth v. O’Bidos, 
    849 A.2d 243
    , 249 (Pa. Super. 2004).
    “Arguable merit exists when the factual statements are accurate and could
    establish cause for relief. Whether the facts rise to the level of arguable merit
    is a legal determination.” Commonwealth v. Barnett, 
    121 A.3d 534
    , 540
    (Pa. Super. 2015) (citations and internal quotation marks omitted). “A
    defendant raising a claim of ineffective assistance of counsel is required to
    show actual prejudice; that is, that counsel’s ineffectiveness was of such
    magnitude that it could have reasonably had an adverse effect on the outcome
    of the proceedings.” Commonwealth v. Spotz, 
    84 A.3d 294
    , 315 (Pa. 2014)
    (citation and quotation marks omitted).
    It is undisputed that the Commonwealth introduced at trial a recorded
    statement and accompanying transcript from Appellant’s initial interview with
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    investigators. Further, it is undisputed Appellant eventually invoked his right
    to remain silent, which ended the interview.
    Appellant argues that, because the Commonwealth is not permitted to
    use a defendant’s assertion of his right to remain silent to prove consciousness
    of guilt, trial counsel should have objected to the introduction of the statement
    and transcripts. Appellant contends counsel had no reasonable basis for his
    failure to object, and that the introduction of this evidence prejudiced the jury
    against him. He concludes he is entitled to a new trial based on counsel’s
    ineffectiveness. We conclude the PCRA court did not err in finding Appellant
    had failed to establish arguable merit or prejudice and therefore disagree.
    The United States and Pennsylvania Constitutions protect a defendant’s
    right to silence, including before arrest. See U.S. Const. amend. V; Pa. Const.
    art. I § 9; Commonwealth v. Guess, 
    53 A.3d 895
    , 903 (Pa. Super. 2012).
    “It is axiomatic that a prosecutor may not comment adversely on a
    defendant’s refusal to testify with respect to the charges against him since
    such commentary would compromise the defendant’s privilege against self-
    incrimination and the defendant’s constitutional presumption of innocence.”
    Commonwealth v. Molina, 
    33 A.3d 51
    , 57 (Pa. Super. 2011) (en banc)
    (citation omitted).
    However, this Court has declined to find a “prima facie bar against any
    mention of a defendant’s silence,” where the reference is not deemed
    exploitative. Commonwealth v. Adams, 
    39 A.3d 310
    , 318 (Pa. Super. 2012)
    (emphasis in original; citation omitted). As such, not all allusions to a
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    defendant’s silence constitute a violation of his Fifth Amendment rights, such
    that counsel could be deemed ineffective by failing to object. See Guess, 
    53 A.3d at 905
    . Our Pennsylvania Supreme Court has held that “[e]ven an explicit
    reference to silence is not reversible error where it occurs in a context not
    likely to suggest to the jury that silence is the equivalent of a tacit admission
    of guilt.” Commonwealth v. DiNicola, 
    866 A.2d 329
    , 337 (Pa. 2005)
    (citation omitted). Where the reference to the defendant’s silence is used to
    establish context, rather than employed in a way likely to create an inference
    of an admission of guilt, the defendant cannot prove the prejudice prong of
    the ineffectiveness test. See 
    id.
    At trial, the Commonwealth referenced Appellant’s interview with police
    in its opening statement:
    As the questioning progressed, they ask him, what kind of things
    were you downloading using the Ares network? And finally he
    says, well, I was looking at movies. They told him -- they said,
    well, what kind of movies? You're not going to shock us in any
    way. It was at that point he decided I'm not going to answer any
    more questions and he stopped. And they stopped questioning
    him. So the interview stops at that point and the defendant is
    charged.
    N.T. Trial, 3/2/15, at 76.
    Appellant’s counsel objected at sidebar, claiming the Commonwealth
    had impermissibly raised the issue of his client “lawyering up” during the
    interview. Id., at 91. The court rejected that assertion, stating the
    Commonwealth had not referred to Appellant asking for a lawyer, and only
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    referenced Appellant’s decision to stop speaking with investigators because it
    clarified why the interview had concluded. See id. The court explained:
    What are they supposed to say at that point? If [Appellant] hadn’t
    said anything [to the investigators] period, then I would agree
    with you, to mention [Appellant’s silence] would be inappropriate.
    But where he starts talking [to] them, they ask him a question
    and he doesn’t want to answer, what are they supposed to say at
    that point? I don’t see that there’s anything inappropriate about
    that.
    Id.
    The Commonwealth then introduced testimony from Agent Nicole
    Laudeman. Laudeman testified, inter alia, that after investigation into the
    dissemination of child pornography online, she determined child pornography
    was being shared from a device linked to Appellant’s internet subscription
    account. See N.T. Trial, 3/3/15, at 120.
    Laudeman and her partner approached Appellant, who agreed to be
    interviewed for their investigation. See id., at 131. They read him his
    Miranda1 rights, and he answered questions for them before eventually
    refusing to continue. See id. The Commonwealth introduced that interview
    into evidence. See id., at 136. The relevant portion of the conversation
    proceeded as follows:
    [Investigator]: [] OK what did you use Ares for?
    [Appellant]:Um watch videos
    [Investigator]: What kind of videos did you watch?
    ____________________________________________
    1   Miranda v. Arizona, 
    384 U.S. 436
     (1966).
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    [Appellant]: Before um
    [Investigator]: You’re not going to shock us so just be honest[,]
    what videos did you look at[?]
    [Appellant] Well I’m not to say nothing here [sic]. I’m going to
    stop the conversation.
    [Investigator]: You’re going to stop the conversation?
    [Appellant]: Uh huh
    Commonwealth’s Exhibit 10, at 7.
    Appellant went on to explicitly ask for an attorney; that request was
    excised from the recording and transcript of the interview presented to the
    jury. Appellant was arrested thereafter. Appellant’s counsel did not object to
    the entry of the redacted interview into evidence.
    The PCRA court held an evidentiary hearing, and trial counsel testified.
    He stated he objected to the portion of the Commonwealth’s opening
    statement that referenced the interview because he believed it could be
    prejudicial to Appellant. See N.T. PCRA Hearing, 12/18/17, at 9. However, he
    testified that after the adverse ruling, he deemed the issue meritless and did
    not object to the introduction of the interview into evidence. See id., at 10.
    He also declined to raise the issue on direct appeal because he believed
    Appellant did not actually suffer any prejudice. See id., at 15. Additionally,
    counsel testified that while the transcript of Appellant’s initial meeting with
    investigators was introduced as an exhibit at trial, the portion where Appellant
    explicitly asked for a lawyer was redacted from the transcript. See id., at 27.
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    Here, we find the brief reference to Appellant ending the interview was
    appropriately used to contextualize the police investigation. Appellant
    knowingly and voluntarily waived that right and cooperated with police in a
    highly relevant interview about illicit materials on his computer before deciding
    to halt the discussion. At no point in the Commonwealth’s opening statement
    or in the recording and transcript presented to the jury was Appellant’s
    decision to stop the interview proffered as substantive evidence of his guilt.
    Neither the prosecution nor any witness commented on Appellant’s choice to
    invoke this right. Instead, the Commonwealth succinctly recapitulated the
    facts of the interview as part of the investigation undertaken by Agent
    Laudeman. We do not find that these minor references to his silence suggest
    Appellant’s tacit admission of guilt. The PCRA court did not err or abuse its
    discretion in concluding Appellant had failed to establish that an objection to
    the evidence would have been sustained.
    Even if counsel had specifically and successfully objected to any mention
    of Appellant’s right to remain silent,2 Appellant fails to demonstrate how the
    outcome of trial would have been different. As the PCRA court describes:
    Not only was it established that [Appellant] was the internet
    subscriber, the named profile user of the laptop and one of just
    two residents living at the address, he also admitted to having
    access to the laptop, to knowing its secreted location within the
    ____________________________________________
    2 While trial counsel did object to the Commonwealth’s opening statement on
    the grounds that it may have been prejudicial to Appellant, counsel’s objection
    was framed as opposition to the Commonwealth referring to Appellant
    obtaining a lawyer. Counsel was overruled, as the Commonwealth made no
    such reference.
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    closet, to knowing its password and, most significantly, to having
    used the file-sharing program in the past to watch videos.
    Moreover, only two laptops were discovered within the residence,
    along with a nonfunctional tablet and some cell phones.
    [Appellant] initially acknowledged in his interview that he and his
    girlfriend each had a computer in the residence. He also stated
    that his was password protected, that he used it to pay bills and
    watch YouTube videos and that he had never downloaded a
    filesharing program onto his computer. When he was confronted
    with the fact that such a program was discovered on a computer
    within the home, [Appellant] suddenly said that there was a third
    computer within the residence that was old and that he did not
    use anymore. This was the only computer within the residence
    found to contain child pornography and it revealed a three-year
    history in which child pornography was frequently sought,
    downloaded and viewed under [Appellant’s] username and
    password. The properly admitted and uncontradicted evidence of
    guilt was so overwhelming in this case, compared to any
    insignificant prejudicial effect the reference to [Appellant’s]
    request for the interview to end may have had, that the admission
    of such could not have contributed to the verdict.
    PCRA Court Opinion, filed 7/25/18, at 6-7.
    We agree with the court’s assessment. Accordingly, we find Appellant is
    due no relief on this issue, and we affirm the denial of his petition.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/07/2019
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