Com. v. Mojica-Carrion, L. ( 2020 )


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  • J-S31003-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    :
    v.                               :
    :
    :
    LEONARDO J. MOJICA-CARRION                    :
    :
    Appellant                :    No. 2102 MDA 2019
    Appeal from the PCRA Order Entered December 5, 2019
    In the Court of Common Pleas of Berks County Criminal Division at
    No(s): CP-06-CR-0005210-2013
    BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY BOWES, J.:                              FILED DECEMBER 16, 2020
    Leonardo J. Mojica-Carrion appeals from the order that dismissed his
    petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
    On August 21, 2014, a jury convicted Appellant of one count each of
    first-degree murder, aggravated assault, robbery, firearms not to be carried
    without a license, and three counts of criminal conspiracy. The convictions
    stem from the shooting death of Galidino Rama-Aguilar during an attempted
    robbery   that     Appellant   and   Estiben       Manso   committed   in   Reading,
    Pennsylvania. The trial court imposed life imprisonment for murder and an
    aggregate term of fourteen and one-half to forty-seven years of confinement
    on the remaining convictions. We affirmed the judgment of sentence on June
    J-S31003-20
    16, 2017,1 and the Supreme Court denied allowance of appeal on November
    29, 2017.     Commonwealth v. Mojica-Carrion, 
    174 A.3d 78
     (Pa.Super.
    2017), appeal denied, 
    175 A.3d 221
     (Pa. 2017).
    Appellant filed a timely PCRA petition on April 12, 2018.         The court
    appointed David Long, Esquire, who concluded that Appellant had no
    meritorious claims and filed a no-merit letter and petition to withdraw
    pursuant to Commonwealth v. Turner, 
    544 A.2d 927
     (Pa. 1988) and
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.Super. 1988).                  Appellant’s
    response challenged Attorney Long’s rationale and complained that the no-
    merit letter failed to raise two issues that Appellant wished to assert regarding
    the trial court’s jury instruction.       Significantly, while Appellant’s response
    noted both his indigence and inability to understand English, he did not assert
    that a language barrier precluded him from communicating with Attorney
    Long. The PCRA court granted Attorney Long’s petition to withdraw and issued
    notice pursuant to Pa.R.Crim.P. 907 of its intention to dismiss the petition
    without a hearing.      Appellant’s reply to the Rule 907 notice reiterated the
    substantive arguments that he asserted in the pro se filings.
    ____________________________________________
    1   We quashed Appellant’s initial direct appeal as untimely. However,
    Appellant filed a timely PCRA petition, and the PCRA court reinstated post-
    sentence and direct appeal rights nunc pro tunc. When a first-time PCRA
    petitioner’s direct appeal rights are reinstated nunc pro tunc, the subsequent
    PCRA petition is considered the first PCRA petition for timeliness purposes.
    See Commonwealth v. Turner, 
    73 A.3d 1283
    , 1286 (Pa.Super. 2013)
    -2-
    J-S31003-20
    In an order dated December 3, 2019, the PCRA court dismissed the
    PCRA petition. The following day, the PCRA court received Appellant’s pro se
    motion for new counsel, citing a language barrier with prior counsel. Treating
    the motion as having been filed after it dismissed the PCRA petition, the PCRA
    court did not address it. Appellant filed the instant appeal and complied with
    Pa.R.A.P. 1925(b), wherein he reasserted the issue concerning the language
    barrier.
    Appellant presents four issues, which we restate for clarity as follows:
    A. Whether the PCRA court erred in denying relief when Appellant
    demonstrated that a language barrier existed between
    Appellant and his appointed counsel?
    B. Whether the PCRA court erred in failing to provide counsel who
    could assist Appellant despite the language barrier and
    Appellant’s inability to access legal assistance in prison?
    C. Whether the cumulative effect of Appellant’s inability to
    understand English, and the denial of access to translated
    materials and legal assistance constitutes extraordinary
    circumstances that prevented him from pursuing the claims in
    his PCRA petition.
    D. Whether the PCRA court deprived Appellant of his right to the
    assistance of counsel and due process under the Sixth and
    Fourteenth Amendments to the U.S. Constitution, respectively.
    Appellant’s brief at 3. On April 29, 2020, we granted Appellant permission to
    file a supplemental brief, wherein he added the contention that the
    Commonwealth violated Brady v. Maryland, 
    373 U.S. 83
     (1963), by
    withholding exculpatory evidence concerning a leniency agreement that it
    entered with Manso.
    -3-
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    Our standard of review of an order dismissing a PCRA petition is
    well-settled:
    We review an order dismissing a petition under the PCRA in the
    light most favorable to the prevailing party at the PCRA level. This
    review is limited to the findings of the PCRA court and the evidence
    of record. We will not disturb a PCRA court’s ruling if it is
    supported by evidence of record and is free of legal error. This
    Court may affirm a PCRA court’s decision on any grounds if the
    record supports it. Further, we grant great deference to the
    factual findings of the PCRA court and will not disturb those
    findings unless they have no support in the record. However, we
    afford no such deference to its legal conclusions. Where the
    petitioner raises questions of law, our standard of review is de
    novo and our scope of review plenary.
    Commonwealth v. Ford, 
    44 A.3d 1190
    , 1194 (Pa.Super. 2012)
    (citations omitted).
    First, we note that because Appellant’s brief does not assert any of the
    substantive arguments that Appellant raised in his PCRA petition, claims which
    Attorney Long previously determined lacked merit, those issues were
    abandoned.2      See Commonwealth v. Johnson, 
    985 A.2d 915
    , 924 (Pa.
    2009) (“[W]here an appellate brief fails to provide any discussion of a claim
    with citation to relevant authority or fails to develop the issue in any other
    ____________________________________________
    2 Although Appellant asserted some of the substantive claims in his reply brief,
    that is insufficient to cure waiver. See Commonwealth v. Fahy, 
    737 A.2d 214
    , 219 n.8 (Pa. 1999)(“[A]n appellant is prohibited from raising new issues
    in a reply brief. Moreover, a reply brief cannot be a vehicle to argue issues
    raised but inadequately developed in appellant’s original brief.”).
    Furthermore, to the extent that Appellant could revive these issues in his reply
    brief, the claims are waived pursuant to Pa.R.A.P. 1925(b)(4)(vii). (Issues
    not included in the Statement . . . are waived.”).
    -4-
    J-S31003-20
    meaningful fashion capable of review, that claim is waived.”). Thus, we do
    not address the merits of those claims herein.
    Next, we confront the issues that Appellant presents relating to
    Appellant’s inability to communicate in English. See Appellant’s brief at 5-8.
    While the Commonwealth contends that these arguments are waived because
    Appellant neglected to assert before the PCRA court any claims relating to the
    alleged language barrier, the certified record belies this assertion. As noted,
    Appellant first raised his language-related argument in a motion received after
    the PCRA court denied the PCRA petition. However, since Appellant was acting
    pro se when he filed that motion, he is entitled to the benefit of the prisoner
    mailbox rule, which treats a document as filed on the date that it is placed in
    prison officials’ hands for delivery. Commonwealth v. Castro, 
    766 A.2d 1283
    , 11287 (Pa.Super. 2001). Instantly, the postmark affixed to Appellant’s
    motion for new counsel reflects a date of December 3, 2019. Therefore, we
    deem the petition timely filed by that date, and proceed to the merits of
    Appellant’s arguments, which we address collectively.
    Appellant asserts that, although he has resided in the continental United
    States since 2010, and graduated from Reading High School in 2012, he is
    unable to speak, write, read, or understand English.     Id. at 5.   Appellant
    highlights that his education was limited to coursework in the English as a
    -5-
    J-S31003-20
    Second Language (“ESL”) program,3 and touts the fact that the trial court
    provided him a certified interpreter during the criminal proceedings. Id.
    Appellant continues that, despite the language barrier, the prison authorities
    rejected his request for Spanish-speaking legal assistance and translation
    services because he completed high school and participated in two language-
    oriented programs while incarcerated. Id at 6. Appellant further contends
    that he surreptitiously enlisted the assistance of various Spanish-speaking
    inmates to translate his correspondence and court filings, including his pro se
    PCRA petition, response to the no-merit letter, and brief. Id. 6-7. In sum,
    without presenting citation to any legal authority establishing his entitlement
    to relief, Appellant requests that we reverse the PCRA order dismissing his
    petition and appoint substitute PCRA counsel to litigate a counseled petition
    that is not tainted by the alleged language barrier. Id. at 8.
    No relief is due.      Stated plainly, Appellant’s failure to present legal
    argument in his brief is fatal to his claim for relief.4 See Johnson, supra at
    924.    It is beyond peradventure that, “[w]hile [we] may overlook minor
    defects or omissions in an appellant's brief, we will not act as . . . appellate
    ____________________________________________
    3 Appellant’s brief refers to the ESL program inaccurately as “Excell.”
    Appellant’s brief at 5.
    4 Although Appellant contends that he could not “provide any case law” in his
    brief because the language barrier precluded legal research, we note that
    Appellant’s pro se motion referenced legal authority that Appellant simply
    failed to cite and develop in his brief. Appellant’s brief at 8.
    -6-
    J-S31003-20
    counsel.” Commonwealth v. Freeman, 
    128 A.3d 1231
    , 1249 (Pa.Super.
    2015)(citations omitted). Furthermore, where, as here, an appellant makes
    no effort to discuss the applicable law or connect the relevant facts to that
    law, the “failure to develop a coherent legal argument in support of his claim
    results in waiver of th[at] issue.” 
    Id.
    Furthermore, even if this claim is not waived pursuant to Johnson, it
    fails on the merits. Typically, the decision to appoint an interpreter is within
    the discretion of the trial court. See Commonwealth v. Pana, 
    364 A.2d 895
    , 898 (Pa. 1976); see also Commonwealth v. Diaz, 
    226 A.3d 995
    , 1003
    (Pa. 2020). Instantly, the PCRA court’s Rule 1925(a) opinion confirms that,
    after considering the quality of Appellant’s pro se filings, which the court
    characterized as “detailed and well-organized” and PCRA counsel’s review of
    the record and correspondence with Appellant pursuant to Turner, and
    Finley, the court rejected Appellant’s assertion that the purported language
    barrier warranted the appointment of an interpreter and new counsel for
    additional proceedings. See PCRA Court Opinion, 2/5/20, unnumbered at 2
    n.1. Specifically, the court concluded, “In sum, this [c]ourt has no reason to
    believe that Appellant has been jeopardized in pursuing his PCRA claims based
    on any language barrier.” 
    Id.
            Thus, notwithstanding Appellant’s stark
    narrative to the contrary, there is no indication in the certified record that the
    PCRA court abused its discretion in concluding that Appellant did not require
    an interpreter.
    -7-
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    Finally, as it relates to the Brady violation that Appellant asserts in the
    supplemental brief, we note that co-defendant Manso cooperated with the
    Commonwealth, testified against Appellant, subsequently pled guilty to
    robbery and a lesser charge, and was sentenced to five to twenty years of
    imprisonment. Manso also testified that, while the Commonwealth did not
    promise him anything in exchange for his cooperation, he hoped to receive
    leniency in his prosecution. Relying upon the notes of testimony from Manso’s
    guilty plea and sentencing, which Appellant asserts he did not receive until
    April 2020 despite his due diligence, Appellant now contends that Manso
    committed perjury when he testified that he did not have an agreement in
    place with the Commonwealth. In essence, characterizing Manso’s testimony
    regarding his cooperation with the prosecution as an agreement between
    Manso and the Commonwealth, Appellant reasons that the Commonwealth
    violated Brady by failing to disclose the purported accord during his trial.5 As
    with the preceding arguments that Appellant failed to assert before the PCRA
    court, we cannot address the instant contention that was asserted for the first
    ____________________________________________
    5 A Brady claim “alleges a failure by the Commonwealth to produce material
    evidence, and requires a petitioner to demonstrate that: (1) the prosecutor
    has suppressed evidence; (2) the evidence, whether exculpatory or
    impeaching, is helpful to the petitioner; and (3) the suppression prejudiced
    the petitioner.” Commonwealth v. Burton, 
    158 A.3d 618
    , 628 n.14 (Pa.
    2017). Appellant is not entitled “relief if he either knew of the existence of
    the evidence in dispute or could have discovered it by exercising reasonable
    diligence.” Commonwealth v. Smith, 
    17 A.3d 873
    , 902 (Pa. 2011).
    -8-
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    time in his supplemental brief.6 See Commonwealth v. Fletcher, 
    986 A.2d 759
    , 778 (Pa. 2009) (claims not raised in the PCRA court are waived and
    cannot be raised for the first time on appeal); Pa.R.A.P. 302(a) (“Issues not
    raised in the lower court are waived and cannot be raised for the first time on
    appeal.”).
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/16/2020
    ____________________________________________
    6 Based upon the nature of the instant contention and the procedural posture
    of this appeal, Appellant may yet seek to assert this novel claim in a
    subsequent PCRA petition. See Commonwealth v. Lark, 
    746 A.2d 585
    , 588
    (Pa. 2000) (“We now hold that when an appellant’s PCRA appeal is pending
    before a court, a subsequent PCRA petition cannot be filed until the resolution
    of review of the pending PCRA petition by the highest state court in which
    review is sought, or upon the expiration of the time for seeking such review.”),
    rev’d on other grounds, Commonwealth v. Small, 8 EAP 2019, 
    2020 WL 5833781
     (Pa. 2020). We do not comment whether Appellant’s assertion is
    sufficient to circumvent the PCRA time-bar pursuant to the newly-discovered-
    fact exception outlined in 42 Pa.C.S. § 9545(b)(1)(ii).
    -9-
    

Document Info

Docket Number: 2102 MDA 2019

Filed Date: 12/16/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024