Com. v. Perez, R. ( 2022 )

J-A18045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERTO HERNANDEZ PEREZ :
:
Appellant : No. 1518 WDA 2021
Appeal from the PCRA Order Entered December 20, 2021
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000342-2017
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 9, 2022
Roberto Hernandez Perez appeals the denial of his Post Conviction Relief
Act (“PCRA”) petition. 42 Pa.C.S.A. §§ 9541-9546. He claims that he raised
meritorious claims of ineffective assistance of counsel. We affirm.
A jury convicted Perez of one count each of drug delivery resulting in
death and involuntary manslaughter; four counts each of possession with
intent to deliver and criminal conspiracy; and three counts of recklessly
endangering another person.1 We affirmed the judgment of sentence and
Perez did not seek allowance of appeal with our Supreme Court.2 See
Commonwealth v. Perez, No. 1361 WDA 2019, 2020 WL 6707506(Pa.Super. filed Nov. 16, 2020) (unpublished memorandum).
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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2705, 903(a)(1), 2506, and
2504(a).
2 The PCRA court reinstated Perez’s direct appeal rights on August 8, 2019.
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In November 2021, Perez filed the instant, timely PCRA petition through
counsel. Perez alleged that trial counsel was ineffective for failing “to
adequately prepare for trial in advance in this matter, in that he did not
request funds for a forensic pathologist, request fund[s] for a private
investigator, or request a continuance of trial until it was too late.” PCRA
Petition, filed 11/15/21, at ¶ 13(d). He also argued that counsel’s failings
caused him prejudice, “as the evidence presented at trial regarding the drugs
provided by [Perez], their consumption by the decedent, other sources of
drugs, and the cause of death were contestable issues[.]” Id. at ¶ 13(e). He
also alleged that counsel prejudiced him in the following ways:
- [Perez] was unable to present information regarding
other potential sources of fentanyl . . . .
- [Perez] was unable to present a forensic expert to
counter the Commonwealth’s suspect evidence that the
drugs obtained from [Perez] and ingested by the
decedent were sufficient to cause his death . . . .
- . . . The Commonwealth’s evidence in these areas could
have been countered by expert testimony and/or
information regarding additional sources of fentanyl
- . . . the jury was not presented with any information to
counter the Commonwealth’s case[.]
Id. at ¶ 13(f). Perez requested an evidentiary hearing for the court to hear
testimony from trial counsel and himself.
The court issued notice of its intent to dismiss the petition without a
hearing. See Pa.R.Crim.P. 907(1). The court stated that Perez had failed to
“outline in his petition the specific evidence that would have been presented
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at trial had his counsel obtained a continuance and obtained an expert and
private investigator.” See Opinion and Order, filed 12/7/21, at 3. Based on
this omission, it concluded that Perez had failed to show any prejudice from
counsel’s alleged error. See id. Perez filed a response arguing that he had
provided sufficient information in his PCRA petition. See Request for
Reconsideration, filed 12/17/21. The court denied Perez’s PCRA petition, and
this timely appeal followed.
Perez raises the following issue: “Did the lower court err in concluding
that [Perez’s] PCRA Petition failed to demonstrate prejudice as defined in
Commonwealth v. Little, 2021 PA. Super. 7, 246 A.3d 312 (Pa.Super. 2021)
and in summarily dismissing [Perez’s] PCRA Petition without a hearing?”
Perez’s Br. at 4 (suggested answer omitted).
When reviewing the denial of PCRA relief, we determine “whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Koehler,
36 A.3d 121, 131 (Pa.Super. 2012) (citation omitted). “[T]o obtain reversal
of a PCRA court’s decision to dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing.” Commonwealth v. D'Amato, 856 A.2d 806,
820 (Pa. 2004).
Perez maintains that considering Little, the court erred in concluding
that he did not prove the prejudice of his ineffectiveness claim. Perez alleges
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that trial counsel was ineffective for failing to hire a defense expert in
pathology and a private investigator to testify at trial. He maintains that he
suffered prejudice because the evidence presented at trial “regarding the
drugs provided by [Perez], their consumption by the decedent, other sources
of drugs, and the cause of death were contestable issues,” and the
Commonwealth’s evidence on these points was “weak, inconsistent,
inconclusive, and challengeable[.]” Perez’s Br. at 12.
Counsel is presumed effective; therefore, Perez was required to plead
and prove that his ineffectiveness claim had arguable merit, counsel’s action
or inactions lacked any reasonable basis, and he was prejudiced by counsel’s
error. See Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012). Where
a PCRA petitioner claims counsel was ineffective for failing to call a witness at
trial, to establish prejudice, the PCRA petitioner must plead and prove that:
(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew, or should have
known, of the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014) (citing
Sneed, 45 A.3d at 1108-09). “[T]he PCRA petitioner must show how the
uncalled witnesses’ testimony would have been beneficial under the
circumstances of the case.” Commonwealth v. Johnson, 966 A.2d 523, 536
(Pa. 2009) (citation omitted). Failing to satisfy any prong of an ineffectiveness
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claim results in the rejection of the claim. See Commonwealth v. Martin, 5
A.3d 177, 183 (Pa. 2010).
Because Perez limits his argument to the prejudice prong of his
ineffectiveness claim, we likewise focus our attention on this prong. In his
PCRA petition, Perez claimed that counsel failed to call a defense expert
witness in pathology as well as a private investigator. He claimed that he
suffered prejudice from counsel’s inaction because if counsel had called these
witnesses, they would have been able to “provide additional information as to
whether or not the Commonwealth’s expert’s findings were inaccurate” and
provide “possible alternative sources of fentanyl.” PCRA Pet. at ¶¶ 13(b)(ii),
(c)(ii). However, he did not identify any expert witness who was available to
testify on his behalf at trial. Nor did he identify a private investigator or allege
any particular evidence an investigator would have unearthed.
The court determined that Perez failed to establish the prejudice prong
of the ineffectiveness test. It concluded that Perez made “general assertions
that he was prejudiced” but “failed, to outline in his [p]etition the specific
evidence that would have been presented at trial had his counsel obtained a
continuance and obtained an expert and private investigator.” Opinion and
Order, at 3.
We discern no abuse of discretion. Perez did not explain whether these
witnesses existed, were available and willing to testify, or that counsel knew
or should have known of their existence. See Wantz, 84 A.3d at 331. Perez’s
claim is one of mere speculation, as he did not identify any specific witness
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nor explain what evidence they would have testified to that would have
changed the outcome of the case. See Commonwealth v. Chmiel, 889 A.2d
501, 546 (Pa. 2005) (“Trial counsel’s failure to call a particular witness does
not constitute ineffective assistance without some showing that the absent
witness’ testimony would have been beneficial or helpful in establishing the
asserted defense”). Furthermore, Perez’s citation to Little is unavailing. We
note that he did not claim that the PCRA court erred in its determination based
on the holding of Little in his Rule 1925(b) statement, and the claim is
therefore waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii). Even if it
were not waived, Little would afford him no relief. The petitioner in Little
proved actual prejudice. 246 A.3d at 330. Here, Perez made no such showing.
Perez also maintains that counsel was ineffective for failing to timely
request a continuance of the trial. He alleged that this prejudiced him because
1) he was not able to present information on alternative sources of the
fentanyl; 2) he was not able to present expert testimony to counter the
Commonwealth’s evidence that the fentanyl provided by Perez was the cause
of the decedent’s death; 3) he was not able to counter the Commonwealth’s
expert testimony; and 4) the jury did not hear alternative evidence to counter
the Commonwealth’s case. PCRA Pet. at ¶¶ 13(f)(i)-(iv).
Here, trial counsel asked the court for a continuance of the trial 20 days
before the trial was set to begin. See Perez, 2020 WL 6707506 at *7. Counsel
alleged that he needed additional time due to the unavailability of a forensic
pathologist and due to new information, that he obtained that was exculpatory
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in nature. See id. Counsel maintained that he was too busy to investigate the
new information and needed to hire a private investigator. See id. He stated
that two weeks, however, would not be enough time for the investigator to
investigate the information. See id.The trial court denied the request, stating that “it is unclear why efforts
to address the obtainment of and report of a forensic expert and private
investigator were not undertaken at an earlier date.” See id. (citing Trial Court
Opinion, 1/18/18, at 8-9). It also stated that counsel’s suggestion that the
private investigator could likely uncover beneficial information regarding the
source of the fentanyl was speculative. See id. The court maintained “there
is only [an] assertion that a witness may be found and he or she may have
valuable information; and, that vague assertion does not support the grant of
a continuance of trial.” See id. (quoting Trial Ct. Op. at 8-9). However, the
court did state that it would revisit and reconsider the request if it was
“supported by more specific assertions[.]” Id. (quoting Trial Ct. Op. at 8-9).
Counsel provided no further specificity.
As evidenced by the history of this case, counsel never specified the
witnesses or the information that would necessitate a continuance. Perez
again raises speculative claims that he could have presented information on
alternative sources of fentanyl, that the expert would have countered the
Commonwealth’s evidence regarding the cause of death, or that any
information, if found, would have countered the Commonwealth’s evidence.
Thus, he fails to show that but for the timing of counsel’s continuance request,
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there is a reasonable probability that the result of the proceeding would have
been different. As such, Perez failed to plead and prove prejudice and the
court did not err in denying this claim of ineffectiveness. There was therefore
no need for an evidentiary hearing, and the court did not err in denying his
request for one. See D'Amato, 856 A.2d at 820.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
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