Com. v. Castro, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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 Super. 2012) (unpublished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).
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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).
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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).
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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.
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