Com. v. DeJesus, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY DEJESUS,
Appellant No. 353 MDA 2015
Appeal from the PCRA Order entered January 27, 2015,
in the Court of Common Pleas of Lebanon County,
Criminal Division, at No(s): CP-38-CR-0001098-2012
BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 18, 2015
Anthony DeJesus (“Appellant”) appeals from the order denying his
petition for post-conviction relief filed pursuant to the Post Conviction Relief
Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
[Appellant] was charged with one count of Criminal
Attempt/Criminal Homicide, two counts of Aggravated
Assault, and one count of Persons Not to Possess, Use,
Manufacture, Control, Sell, or Transfer Firearms. On
September 27, 2012, [Appellant] filed a pretrial motion,
where he raised suppression of evidence and discovery
issues. A pretrial hearing was held on October 31, 2012.
On December 18, 2012, President Judge John C. Tylwalk
filed an Opinion denying the Motion to Suppress Evidence
and granting the Motion for Discovery.
A jury trial was held on March 6, 2013. The jury found
[Appellant] guilty of all charges except for the criminal
attempt/criminal homicide charge. [Appellant] was
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sentenced to 6 to 20 years of incarceration on the
aggravated assault convictions and 5 to 10 years of
incarceration on the persons not to possess firearms
conviction. The sentences were to run consecutive. An
appeal was filed to the Superior Court of Pennsylvania.
One issue was raised on appeal where [Appellant]
challenged the denial of the Motion to Suppress Evidence.
On January 13, 2014, the Superior Court of Pennsylvania
affirmed [Appellant’s] judgment of sentence.
[Commonwealth v. DeJesus, 96 A.3d 1081 (Pa. Super.
2013) (unpublished memorandum).]
On December 4, 2014, [Appellant] filed a timely [PCRA]
Petition[.] [The PCRA court appointed counsel] to
represent [Appellant]. The Commonwealth filed a
response to the PCRA Petition on December 15, 2014. On
January 22, 2015, [PCRA counsel] filed an Amended PCRA
Petition. A PCRA hearing was held on January 27, 2015,
At the conclusion of the hearing, this Court denied the
PCRA Petition.
PCRA Court Opinion, 3/13/15, at 1-2 (footnotes omitted). This timely appeal
followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.
1925.
Appellant raises the following issues:
1. Whether trial counsel was ineffective for failing to call
key witnesses on [Appellant’s] behalf, whose proposed
testimony and whereabouts were known to trial counsel
prior to and during trial, and whose eye-witness [sic]
testimony would have directly refuted the
Commonwealth’s allegations?
2. Whether trial counsel was ineffective for failing to
consult with [Appellant] regarding videotape evidence,
which was used at trial?
3. Whether trial counsel was ineffective for failing to
thoroughly discuss [Appellant’s] appellate rights?
4. Whether [the] trial court erred when it sentenced
[Appellant] to a mandatory firearm enhancement
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minimum, where such element is illegal in light of the
holding in [Alleyne v. United States, 133 S. Ct. 2151
(2013)]?
Appellant’s Brief at 4.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001).
Because Appellant’s first three issues challenge the stewardship of
prior counsel, we apply the following principles. Counsel is presumed to be
effective, and Appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).
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, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326,
333 (1999). Appellant must demonstrate: (1) the
underlying claim is of arguable merit; (2) that counsel had
no reasonable strategic basis for his or her action or
inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome
of the proceedings would have been different. Id. The
petitioner bears the burden of proving all three prongs of
the test. Commonwealth v. Meadows, 567 Pa. 344, 787
A.2d 312, 319-20 (2001).
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Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005). In
assessing a claim of ineffectiveness, when it is clear that appellant has failed
to meet the prejudice prong, the court may dispose of the claim on that
basis alone, without a determination of whether the first two prongs have
been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
Counsel cannot be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc),
appeal denied, 852 A.2d 311 (Pa. 2004).
Appellant first claims that trial counsel was ineffective for failing to call
several eyewitnesses to testify in his defense. See Appellant’s Brief at 9-11.
In order to establish that trial counsel was ineffective for failing to
investigate and/or call a witness at trial, a PCRA petitioner must
demonstrate:
(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the
witness was prepared to cooperate and would have testified
on appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.
Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation
omitted).
Here, the PCRA court summarized the testimony from the evidentiary
hearing as follows:
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At the PCRA hearing, [Appellant] testified that there
were three witnesses who would have testified at trial that
they [along with Appellant] were present at the incident,
there was already an argument when they arrived, and
they did not have a gun on them. [Trial counsel] testified
that to his knowledge, [Appellant] never gave him the
name of the three witnesses. [Trial counsel] did not have
the names of these individuals in his file. [Trial counsel]
testified that [Appellant’s] purpose of having them called
to testify that a fight was already [occurring] at the scene
and they did not have a gun on them would contradict
[Appellant’s] defense that he was not present at the scene
at the time of the incident.
PCRA Court Opinion, 3/13/15, at 6 (footnote omitted).
The PCRA court then explained its rationale for denying Appellant post-
conviction relief:
This claim lacks arguable merit. On October 16, 2012,
Appellant filed a Notice of Alibi Defense. The notice states
that Appellant was at 11 North Ninth Street, Apt. 3,
Lebanon, PA on the date and time of the incident. The
notice also sets forth two individuals, who both have the
same address, who may be called to support the alibi
claim. [Appellant’s] grandmother testified at the jury trial
that Appellant was at home that night. [Appellant’s] aunt
testified at the jury trial that [Appellant] was at home that
night. [Appellant] himself testified at the jury trial that he
was at home that night.
Appellant, his grandmother, and his aunt all testified
that Appellant was at home the night of the incident. Now
Appellant is claiming that there are three witnesses who
would have testified that he actually was at the scene of
the crime, but a fight was already [occurring] upon their
arrival, and they did not have a gun on them. These two
theories contradict one another. Appellant has always
maintained that he was not at the scene of the crime that
night. Now, Appellant is claiming he actually was there.
[Appellant] even states in his pro se PCRA Petition, “When
my witnesses and I got to the scene, there were already
two parties their [sic] having words.” The only value
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obtained from Appellant’s instant PCRA claim is it suggests
the trial witnesses, including [Appellant] himself,
committed perjury at the jury trial. Therefore, we cannot
find [trial counsel] ineffective for failing to call these
individuals at trial since they would have contradicted
[Appellant’s] defense that he was at home at the time of
the incident.
PCRA Court Opinion, 3/13/15, at 6-7 (citations omitted).
Our review of the record supports the PCRA court’s conclusions.
Although the PCRA court did not make a specific credibility determination as
to whether trial counsel knew of the witnesses, the court clearly found that
the absence of their testimony did not prejudice Appellant because the
testimony would have contradicted Appellant’s alibi defense presented at
trial. Thus, because Appellant has failed to establish all of the Hall factors,
see supra, his first ineffectiveness claim fails.
In his second issue, Appellant asserts that trial counsel was ineffective
for failing to consult with him regarding videotape surveillance evidence from
nearby security cameras that the Commonwealth provided in discovery.
According to Appellant, “[he] continually requested Trial Counsel to allow
[him] to review the video that was recorded from the alleged crime scene.
In an effort to assist in his own defense, [Appellant] wished to review the
video so as to discuss any and all inconsistencies with Trial Counsel.”
Appellant’s Brief at 12.
The PCRA court first summarized the pertinent testimony from the
PCRA hearing:
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At the PCRA hearing, [Appellant] asserted that he told
[trial counsel] of a videotape, but [trial counsel] told him
he could not play the video, and they would still have to
prove who was on the video. [Appellant] claimed that the
video was played during trial, and this was the first time
he saw the video. However, Appellant asked [trial
counsel] to see the video prior to trial. [Trial counsel] did
not recollect if [Appellant] ever requested the video.
PCRA Court Opinion, 3/13/15, at 7.
The PCRA court then explained its reasons for rejecting this
ineffectiveness claim:
Once again, we cannot find [trial counsel] ineffective.
At trial, a video was played from the bar establishment of
the night of the incident, and Officer Keith Ulrich testified
that Appellant was displayed on the video. Despite the
video and the police officer’s testimony, [Appellant] still
maintained that he was at home with his grandmother and
aunt the night of the incident. Therefore, it was for the
jury to weigh the probative value of the video and to
evaluate the credibility of the witnesses. The finder of fact
is free to believe all, part, or none of the evidence. The
fact finder makes credibility determinations. It was up to
the jury to decide if [Appellant] was at home the night of
the incident. The jury was free to believe the video
evidence, and it was free to reject the testimony that
Appellant was home that night. The fact that [trial
counsel] may or may not have consulted with [Appellant]
about this videotape prior to trial does not mean that the
outcome of the trial would have been different. Rather, it
only suggests that had Appellant seen a video that
depicted himself not at home that night, then he would
have been more likely to change his account of his
whereabouts that night for trial. This is not grounds to
find trial counsel ineffective.
PCRA Court Opinion, 3/13/15, at 7-8 (citations omitted).
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Once again, our review of the record supports the PCRA court’s
conclusion that Appellant failed to establish prejudice. Travaglia, supra.
Indeed, when he testified at trial, Appellant challenged Officer Ulrich’s
testimony that Appellant was the person depicted in the video based on the
officer’s description of certain body tattoos. See N.T., 3/16/13, at 119-20.
As stated by the PCRA court, the fact that Appellant may now believe that an
alibi was not his strongest defense, does not render trial counsel’s assistance
ineffective. See Commonwealth v. Fisher, 813 A.2d 761, 767 (Pa. 2002)
(reiterating “[s]peculation by hindsight that a different strategy might
possibly have been successful is not the test which establishes
ineffectiveness of counsel”). Thus, Appellant’s second issue fails.
In his third and final claim of ineffectiveness, Appellant contends that
trial counsel was ineffective “for failing to thoroughly discuss his appellate
rights.” Appellant’s Brief at 15. According to Appellant, trial counsel was
ineffective because he failed to communicate with Appellant, and thus failed
to raise “many claims he wished . . . to pursue on his appeal.” Id. at 18.
The PCRA court first discussed the pertinent testimony presented at
the PCRA hearing:
At the PCRA hearing, [Appellant] testified that trial
counsel stated that he was only appealing the case
because he was obligated and Appellant was making him
do it. [Appellant] indicated that [trial counsel] told him
the appeal was basically worthless, and [trial counsel] did
not discuss what issues [Appellant] wanted to raise on
appeal. [Trial counsel] testified that he did file an appeal
and concise statement [of errors complained of on appeal]
on behalf of [Appellant], but [trial counsel] suffered an
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injury, and [new appellate counsel] was appointed. [Trial
counsel] testified that had he remained on appeal, he
would have filed a no-merit letter. [Trial counsel] testified
that he did raise the pretrial issue on appeal.
PCRA Court Opinion, 3/13/15, at 8.
The PCRA court then explained why Appellant’s claim was without
merit:
Once again, we find that [trial counsel] was not
ineffective. [Trial counsel] perfected an appeal to the
Superior Court where he raised the pretrial ruling.
However, he could not continue representation due to an
injury. Thereafter, [new appellate counsel] took over. The
Superior Court affirmed the judgment of sentence. This
does not rise to the level of ineffectiveness.
Id.
We agree. A review of the record reveals that “due to the
unavailability of [trial counsel],” the trial court appointed new appellate
counsel by order entered May 7, 2013. We note that Appellant does not
challenge the effectiveness of new appellate counsel, who completed
Appellant’s appeal process.
In his final issue, Appellant asserts that the trial court imposed an
illegal sentence upon him based on the United States Supreme Court’s
recent ruling in Alleyne v. United States, 133 S. Ct. 2151 (2013). In
Alleyne, the high court held that “[m]andatory minimum sentences increase
the penalty for a crime . . . . [so] any fact that increases the mandatory
minimum is an ‘element’ [of the crime] that must be submitted to the jury.”
Alleyne, 133 S. Ct. at 2155.
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According to Appellant:
In light of the holding in Alleyne, supra, [Appellant]
avers that his sentence is illegal as no factfinder
determined beyond a reasonable doubt whether [he]
utilized a firearm in the course of the alleged assault.
Since the [alleged] [sic] use of a firearm in the course of
the alleged assault was deemed a “sentencing factor”
rather than an “element” of the crime, the imposition of
the five (5)-year mandatory minimum sentence for
Aggravated Assault under 18 [Pa.C.S.A.] § 2702(a)(4)
violated [Appellant’s Due Process rights.
Since [Appellant’s] right to due process has been
violated, [Appellant’s] rights should be reinstated.
Appellant’s Brief at 20.
Initially, because an issue involving the alleged illegality of a sentence
can be raised at any time, we reject the Commonwealth’s assertion that
Appellant waived this issue by failing to raise it in his Pa.R.A.P. 1925(b)
statement. See Commonwealth’s Brief at 7. However, our review of
Appellant’s claim is impeded because a transcript of Appellant’s sentencing
hearing is not in the certified record. See generally Commonwealth v.
Preston, 904 A.2d 1 (Pa. Super. 2006) (en banc).1
Nevertheless, a review of the record before us contradicts Appellant’s
Alleyne claim. In Appellant’s sentencing memorandum, trial counsel
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1
Although not obligated to do so, we communicated with the county
prothonotary and were informed that the sentencing hearing was never
transcribed.
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stated: “[T]he offense gravity score to be assigned to Count Two
[(aggravated assault)] is 10. With a prior record score of four, the
sentencing guidelines applicable to Count Two are 66 to 78 months.”
Sentencing Memorandum, 3/28/13, at 4. In a footnote, trial counsel further
stated: “As a result of [Appellant’s] prior record score, the sentencing
guidelines exceed the mandatory minimum otherwise applicable under 42
[Pa.C.S.A. §] 9712.” Id.
The trial court imposed a minimum sentence of 72 months upon
Appellant for his aggravated assault conviction. Thus, our review of the
record supports the Commonwealth’s averment that Appellant “was not
sentenced to a ‘mandatory sentence’”, but “was sentenced firmly within the
standard range of the sentencing guidelines.” Commonwealth’s Brief at 7.
Finally, although it appears the trial court included a weapons enhancement
to the applicable sentencing guidelines, this fact does not invoke the
application of Alleyne. See Commonwealth v. Buterbaugh, 91 A.3d
1247, 1270 n.10 (Pa. Super. 2014) (en banc).
For the foregoing reasons, the PCRA court correctly concluded that
Appellant’s three claims of trial counsel ineffectiveness did not entitle him to
post-conviction relief. Additionally, because our review of the record does
not support Appellant’s illegal sentence claim, we affirm the PCRA court’s
denying relief.
Order affirmed.
Judge Bender joins the memorandum.
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Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2015
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