Com. v. Otero, J. ( 2014 )

J-S36019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAIME OTERO
Appellant No. 2771 EDA 2013
Appeal from the PCRA Order September 24, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000290-2008
BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.*
MEMORANDUM BY JENKINS, J.: FILED AUGUST 06, 2014
1
Specifically, Appellant argues that his trial counsel was ineffective for failing
to cross-
officer before calling the police following the assault for which Appellant was
convicted. After careful review, we affirm.
The trial court aptly set forth the facts and procedural history of this
case as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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On August 22, 2008, [Appellant] was convicted by a jury
of Simple Assault, Terroristic Threats, Possession of a Controlled
Substance, and Possession of Drug Paraphernalia. The charges
stemmed from an incident which occurred between [Appellant]
Springfield Township, where [Appellant] had been temporarily
living with Complainant and her young son. [Appellant] and
Complainant had an argument in the morning on November 29,
2007, during which [Appellant] used a utility knife in a
threatening manner towards Complainant, threatening to cut
both her and her son. Complainant called 911 and reported
advised the 911 dispatcher that he could be found in her home.
[Appellant] answered the door and identified himself as Jaime
Otero. Complainant subsequently gave police written consent to
search her apartment and [Appellant] was placed in handcuffs
for the safety of the officers.
A search of the apartment yielded a blue utility knife; a set
currency; two cell phones; a chilled and open can of beer; and a
black 35mm plastic film container. [Appellant] confirmed all of
the items were his with the exception of the film canister. Police
opened the plastic film canister and discovered sixteen small
individually wrapped packages which appeared to contain a
controlled substance. After laboratory examination, it was
determined that the substance in the packages was .70 grams of
heroin.
On August 27, 2008, following his trial, [Appellant] was
sentenced to 22-72 months incarceration by Judge Heckler. On
September 4, 2008, trial counsel filed a Motion for Post-
Sentence Relief on behalf of [Appellant], which was denied by
this [c]ourt. On September 5, 2008, [Appellant] filed a pro se
appeal to the Superior Court and Motion for New Counsel,
without consulting trial counsel and without providing notice to
them.
On October 7, 2008, a Petition for the Appointment of
Office. On October 16, 2008, this [c]ourt denied the Post-
Sentence Motion as well as the Petition for Appointment of
Private Counsel. On May 4, 2009, [Appellant] filed a Motion for
Withdrawal of Appointed Counsel and to Proceed Pro Se and the
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Superior Court ordered this [c]ourt to conduct a hearing on the
matter. A hearing was held wherein this [c]ourt found
[Appellant] was permitted to proceed pro se.
On June 30, 2009, [Appellant] filed a Motion for Setting
Bail Pending Appeal with the Superior Court and subsequently,
the Superior Court directed the Motion to be decided by this
Motion for Bail in an Order dated September 15, 2009.
[Appellant] appealed the denial of bail and the Superior Court
ultimately affirmed this [c]ourt. On December 16, 2010, our
Appeal.
On November 14, 2011, [Appellant] filed a pro se PCRA
petition. On December 14, 2011, this [c]ourt appointed Attorney
Stuart Wilder to represent [Appellant]. On August 13, 2012, a
PCRA petition. In an order dated November 8, 2012, this [c]ourt
denied [Appellant] relief under the PCRA. Petitioner did not
appeal.
On August 27, 2013, [Appellant] filed his Second PCRA
Petition. On September 26, 2013, this [c]ourt entered an Order
permitting [Appellant] to file an appeal of the denial of his first
PCRA Petition nunc pro tunc. On September 30, 2013,
[Appellant] filed this Notice of Appeal. On October 17, 2013,
[Appellant] filed a Concise Statement of Matters Complained of
on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure
1925(b).
at 1-4 (internal record citations and footnotes omitted).
Appellant raises the following question for our review:
Did counsel, who failed to present impeachment evidence by
parole officer before she called the police, provide ineffective
assistance in violation of the Sixth Amendment to the United
States Constitution and Article 1, Section 9 of the Pennsylvania
Constitution?
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In reviewing an order denying PCRA relief, our well-settled standard of
supported by the evidence of record and is free of legal error. The PCRA
nless there is no support for the
Commonwealth v. Barndt, 74 A.3d 185,
191-192 (Pa.Super.2013) (internal quotations and citations omitted).
This Court follows the Pierce2 test adopted by our Supreme Court to
review PCRA claims of ineffective assistance of counsel:
PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from 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. We have interpreted this provision in the PCRA to
mean that the petitioner must show: (1) that his claim of
reasonable strategic basis for his action or inaction; and (3) that
the error of counsel prejudiced the petitioner-i.e., that there is a
reasonable probability that, but for the error of counsel, the
outcome of the proceeding would have been different. We
presume that counsel is effective, and it is the burden of
Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal
citations and quotations omitted). The petitioner bears the burden of
proving all three prongs of this test. Commonwealth v. Meadows, 787
____________________________________________
2
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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A.2d 312, 319-
preponderance of the evidence any of the Pierce prongs, the Court need not
Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa.2010) (citation omitted).
-examination of
witnesses are matt
Commonwealth v. Smith
deemed constitutionally effective if he chose a particular course that had
Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa.2010) (citation
omitted).
where he or she has a reasonable ba
Commonwealth v. Spotz, 896 A.2d 1191, 1235 (Pa.2006) Moreover, the
mere fact that this trial strategy ultimately proved unsuccessful does not
Id.
chosen by counsel had some reasonable basis, our inquiry ceases and
Commonwealth v. Paolello,
665 A.2d 439, 454 (Pa.1995).
Appellant argues that trial counsel provided ineffective assistance by
failing to cross-examine the complainant about whether she called
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which Appellant was convicted. See -14. This claim
lacks merit.
At the PCRA hearing, trial counsel explained his tactical decision to
There was an issue that Mr. Otero was currently on state
probation and parole. Although Mr. Otero says DUI is not a big
offense, I look at DUI differently.
But most people drive on the road and see[] some idiot who run
And I thought why should I l
criminal record. All we had to do was admit to the crimen falsi,
which is lying to the police officer.
Otero, you did this back in 2003, right? That was a long time
ago. Yes. You pled guilty because you were guilty, right? Yeah.
You paid the full price for that.
...
So whether [the complainant] called state parole first
jury think, gee, look, she was just trying to call the PO not to get
him in real trouble with the police. And you enhance her
credibility.
decision not to put into fact [sic] he was on state parole. So I
he even open
alone.
...
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state p
edibility
one iota after we lost bringing [another witness] in to talk about
her bias, prejudice and motive for making the story up.
N.T. 8/13/2012, pp. 37-39.
The PCRA court summarized this testimony as follows:
PCRA hearing. He stated
that he made a strategic decision not to question Complainant
on this issue because he did not want the jury to be prejudiced
by the knowledge that [Appellant] was on parole at the time of
the incident. [Trial counsel] took a number of other steps prior
to and during the trial to ensure the jury would not be aware of
1925(a) Opinion, p. 5; see also N.T. 8/13/2012, pp. 37-39. The PCRA court
then concluded:
This is a legitimate trial tactic with a reasonable basis and
therefore cannot be grounds to render counsel ineffective.
Further, given the likelihood this information would have
prejudiced the jury, [Appellant] has no basis for arguing the
outcome of his case would have been different.
Id. at 5-6.
We
the record and free of legal error. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2014
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