Com. v. Ortiz, W. ( 2020 )

J-S40043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLEY ORTIZ :
:
Appellant : No. 3465 EDA 2018
Appeal from the PCRA Order Entered November 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010986-2010
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 6, 2020
Appellant, Willey Ortiz, appeals from the order entered November 29,
2018, that denied his first petition filed under the Post Conviction Relief Act
(“PCRA”).1 Additionally, PCRA counsel has filed an application to withdraw
pursuant to Turner/Finley.2 We affirm and grant PCRA counsel’s application
to withdraw.
The facts underlying this appeal are as follows:
In 2009, continuing into early 2010, [Appellant] was a drug dealer
near the corner of Waterloo Street and Gurney Street in
Philadelphia. N.T., 2/4/14 at 21-23; 2/5/14 at 124. [Appellant]
was an associate of Jose Mena. N.T., 2/4/14 at 22-23; 2/5/14 at
123-124, 130. In early 2009, Kenneth Rolon worked for
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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[Appellant] and Mena, selling drugs on the street. Id. While
working for [Appellant] and Mena, Rolon was arrested for drug
distribution and spent several months in jail without bail being
posted. N.T., 2/4/14 at 21, 23; 2/5/14 at 151. Upon Rolon’s
release, Rolon began working for a different drug dealer,
Jonathan Morales. N.T., 2/4/14 at 24, 2/5/14 at 129-130. At this
time, Angel Feliciano was also working for [Appellant]. N.T.,
2/5/14 at 88, 135. Early in January, 2010, Rolon and Feliciano
became embroiled in a dispute, whereupon Rolon decided to take
“all [the drug selling] work” on the comer. N.T., 2/4/14 at 29, 34;
2/5/14 at 43-44, 136.
On January 22, 2010, at approximately 3:45 p.m., [Appellant]
was driving his black Chevy Cavalier down Cambria Street with
Feliciano in the back seat. N.T., 2/3/14 at 61; 2/4/14 at 86, 193-
194; 2/5/14 at 21-23, 39-40. [Appellant] spotted Rolon on the
corner of Cambria Street and Howard Street, near the Sanchez
Grocery located on that corner, and motioned Rolon to come over
to the car. N.T., 2/4/14 at 134, 193-194; 2/5/14 at 22, 39.
Jose Aponte was present with Rolon at this time. N.T., 2/5/14 at
38-39. When Rolon did not go toward the car, [Appellant]
reversed and pulled close to Rolon, asking “you not still mad about
that fight, right?” N.T., 2/5/14 at 40, 95-96. Rolon then walked
over to the car and leaned in toward [Appellant]. N.T., 2/5/14 at
40. At that time, Feliciano, still sitting in the back seat, shot Rolon
once in the chest with a .25 caliber firearm. N.T., 2/5/14 at 40;
2/6/14 at 19-20. Surveillance cameras from Sanchez [G]rocery
captured the shooting on video. N.T., 2/3/14 at 85.
Virgilio Sanchez witnessed the shooting from across the street.
N.T., 2/5/14 at 21. After the shooting, [Appellant] and Feliciano
fled the scene in [Appellant]’s car. N.T., 2/4/14 at 198; 2/5/14
at 40.
Rolon fled inside Sanchez Grocery, where he collapsed. N.T.,
2/3/14 at 63; 2/5/14 at 40. Police and paramedics were called
and arrived on the scene shortly thereafter, transporting Rolon to
Temple [University] Hospital where he was pronounced dead.
N.T., 2/3/14 at 66, 72, 74; 2/5/14 at 96. Officers recovered a
single .25 caliber fired cartridge case on Cambria Street. N.T.,
2/3/14 at 81; 2/4/14 at 54; 2/5/14 at 72. [Appellant]’s vehicle
was recovered two days later, on January 24, 2010, at
[Appellant]’s grandmother’s house on the 3900 block of N[orth]
Marshall St[reet]. N.T., 2/4/14 at 38; 2/5/14 at 207. Police were
unable to locate [Appellant] for several days following the
shooting. N.T., 2/5/14 at 190-191, 205-210. [Appellant] was
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subsequently found on February 22, 2010 in Woodbury, New
Jersey, entering an apartment on Bun Street. N.T., 2/5/14 at
210-211. When police confronted [Appellant], [Appellant]
attempted to flee and ultimately hid in a closet in the apartment,
where he was arrested. Id.
Trial Court Opinion, filed November 26, 2014, at 2-3 (footnotes omitted)
(some additional formatting).
On February 7, 2014, at the conclusion of a four-day trial, a jury
convicted [Appellant] of third degree murder. On April 4, 2014,
the [trial] court sentenced him to 20 to 40 years’ incarceration.
[Appellant] filed a post-sentence motion challenging the
sufficiency and weight of the evidence supporting his conviction.
On August 1, 2014, the trial court denied the post-sentence
motion, and on August 28, 2014, [Appellant] filed a timely notice
of appeal.
On appeal, [Appellant] challenge[d] the sufficiency of the
evidence and the weight of the evidence.
Commonwealth v. Ortiz, No. 2518 EDA 2014, unpublished memorandum at
2-3 (Pa. Super. filed July 7, 2015). This Court affirmed Appellant’s judgment
of sentence, id. at 1, and he filed a petition for allowance of appeal with the
Supreme Court of Pennsylvania, which was denied on February 8, 2016.
On July 27, 2016, Appellant filed his first, pro se, timely PCRA petition,
in which he alleged that this trial counsel was ineffective for: (1) “fail[ing] to
conduct a reasonably thorough pre-trial investigation where such an
investigation would have revealed that . . . Detective James Pitts, Officer
Stephen Dmytryk and Detective Omar Jenkins . . . were under investigation
by . . . Internal Affairs”; (2) failing to interview, to investigate, or to present
the testimony of Appellant’s wife; (3) failing to call Feliciano to testify;
(4) advising Appellant not to testify in his own defense; and (5) failing to raise
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a claim pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).3 PCRA Petition,
7/27/2016, at 3-4. Appellant additionally alleged that “he was denied due
process of law and/or a fair trial where, in violation of the rule of Brady v.
Maryland, 373 U.S. 83 (1963)[4] . . . the Commonwealth withheld”
information about the investigation into Detectives Pitts and Dmytryk and
Officer Jenkins. Id. at 4-5. He concludes that “he is entitled to a new trial
based upon the unavailability at the time of trial of exculpatory evidence that
has subsequently become available” concerning the investigation into these
detectives and officer. Id. at 5.
On May 26, 2017, the PCRA court appointed counsel to represent
Appellant.5 On January 9, 2018, pursuant to Turner/Finley, PCRA counsel
filed a petition to withdraw and a “no merit” letter with the PCRA court. A
hearing was scheduled for February 1, 2018, but, after PCRA counsel
rescinded the “no merit” letter, the PCRA court entered the following order:
PCRA Continued For Further Findings By Defense
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3 In Batson, the United States Supreme Court “upheld the constitutional
limitations on a prosecutor’s use of peremptory challenges to purposely
exclude members of a defendant’s race from participating as jurors.”
Commonwealth v. Dinwiddle, 542 A.2d 102, 104 (Pa. Super. 1998).
4 Under Brady v. Maryland, 373 U.S. 83, 87-88 (1963), “suppression by
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of prosecution.”
5The record is unclear as to why over nine months passed between the filing
of Appellant’s first PCRA petition and the appointment of counsel.
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Defense request (45 days) for further investigation to file
amended petition or Finley Letter
Next court date 3/23/2018 courtroom 1007
Order, 2/1/2018. On March 20, 2018, PCRA counsel filed an amended PCRA
petition raising the sole claim that trial counsel was ineffective for advising
Appellant not to testify at trial. Amended PCRA Petition, 3/20/2018, at 3. On
November 29, 2018, the PCRA court held an evidentiary hearing and denied
Appellant’s petition. On December 6, 2018, Appellant filed this timely appeal.
On December 21, 2018, Appellant filed the following statement of errors
complained of on appeal:
1. Trial counsel was ineffective for failing to conduct a
reasonable pre-trial investigation in that Detective James Pitts,
[Detective] Omar Jenkins, and Police Officer Stephen Dmytryk
were being investigated by police internal affairs.
2. The [PCRA] court erred in denying [Appellant]’s PCRA
petition.
3. Trial counsel was ineffective in not calling [Appellant’s] wife
Lisa Edwards and Angel Feliciano at the time of trial.
4. Trial counsel was ineffective for failing to raise a Ba[t]son
v. Kentucky, 476 U.S. 79 (1986) claim at the time of trial.
5. [Appellant] asserts that there was a violation of Brady v.
Maryland since the Commonwealth knew that Detectives Pitts,
Dmytryk, and Jenkins were under investigation by internal affairs
and that the subsequent discovery of the aforementioned
detectives and officers constituted after-discovered evidence.
Matters Complained of on Appeal, 12/21/2018, at 1-2 (not paginated). The
trial court entered its opinion on March 21, 2019.
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On February 29, 2020, PCRA counsel filed a Turner/Finley letter and
brief with this Court, along with a motion to withdraw as counsel.6
Prior to addressing the merits of the appeal, we must review
counsel’s compliance with the procedural requirements for
withdrawing as counsel. . . . Counsel petitioning to withdraw from
PCRA representation must proceed under . . . Turner . . . and
Finley . . . and must review the case zealously. Turner/Finley
counsel must then submit a . . . brief on appeal to this Court,
detailing the nature and extent of counsel’s diligent review of the
case, listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy
the technical demands of Turner/Finley, the court—trial court or
this Court—must then conduct its own review of the merits of the
case. If the court agrees with counsel that the claims are without
merit, the court will permit counsel to withdraw and deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510–11 (Pa. Super. 2016)
(internal citation omitted) (some formatting).
Based on our review, we conclude that PCRA counsel has satisfied the
technical demands of Turner/Finley in his brief. See id. In addition, counsel
has sent the following to Appellant: (1) a copy of the “no merit” brief, (2) a
copy of his petition to withdraw, and (3) a statement advising appellant that
he has the right to retain new counsel to pursue the appeal, to proceed pro
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6 Appellant did not file a pro se or counseled response to the Turner/Finley
letter.
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se, or to raise additional points deemed worthy of the court’s attention. See
Letter from PCRA counsel to Appellant (dated March 1, 2020). Accordingly,
we must conduct our own independent evaluation of the record to ascertain
whether we agree with PCRA counsel that Appellant is not entitled to relief.
See Muzzy, 141 A.3d at 511.
In the Turner/Finley brief, PCRA counsel copied the challenges
enumerated in Appellant’s Matters Complained of on Appeal, stating that
Appellant “intends” to raise these claims. Turner/Finley Brief at 3.
“We review the denial of PCRA relief to decide whether the PCRA court’s
factual determinations are supported by the record and are free of legal error.”
Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting
Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)), reargument
denied (July 17, 2019).
Preliminarily, we note: “Amended petitions are required on first-time
PCRA cases, Commonwealth v. Tedford, 566 Pa. 457, 781 A.2d 1167, 1171
(2001), and the PCRA court is only permitted to address issues raised in a
counseled petition.” Commonwealth v. Markowitz, 32 A.3d 706, 713 n.5
(Pa. Super. 2011). None of the claims listed in Appellant’s Matters Complained
of on Appeal and incorporated into the Turner/Finley brief were included in
his counseled, amended petition. Compare Amended PCRA Petition,
3/20/2018, at 3, with Matters Complained of on Appeal, 12/21/2018, at 1-2,
and Turner/Finley Brief at 3. The only issue raised in his amended petition
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was that trial counsel was ineffective for failing to call Appellant to testify on
his own behalf, and this issue was not included in Appellant’s Matters
Complained of on Appeal. Compare Amended PCRA Petition, 3/20/2018, at
3, with Matters Complained of on Appeal, 12/21/2018, at 1-2. Accordingly,
all of the issues raised on appeal are waived.
Assuming Appellant’s first and fifth appellate challenges were not waived
for this reason, we would observe that, pursuant to our review of the certified
record, Detective Jenkins did not testify at Appellant’s trial and his name was
mentioned less than ten times over the course of Appellant’s four-day trial.
See N.T., 2/4/2014, at 140, 209; N.T., 2/5/2014, at 31-32, 45, 195-96
(mentions of Detective Jenkins in notes of trial testimony). Similarly, we find
that Officer Dmytryk did not provide any facts during trial, as evidenced by
the fact that the trial court did not cite to his testimony at all when providing
the facts of this case in its opinion; Officer Dmytryk’s testimony only served
to establish the chronology of the investigation and that Appellant and
Sanchez knew each other prior to Sanchez witnessing the killing. N.T.,
2/5/2014, at 48-58; Trial Court Opinion, filed November 26, 2014, at 2-3.
Consequently, even if the Commonwealth had disclosed or trial counsel had
otherwise discovered the investigation into Detective Jenkins and Officer
Dmytryk, we fail to see how any doubt as to their honesty or trustworthiness
could have had any bearing on the outcome of Appellant’s trial. See
Commonwealth v. Treiber, 121 A.3d 435, 460–61 (Pa. 2015) (“To establish
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a Brady violation, appellant must . . . establish prejudice, . . .
demonstrate[ing] a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” (citations and internal quotation marks omitted)); Medina, 209
A.3d at 1000 (to establish ineffective assistance of counsel, appellant must
prove “prejudice, to the effect that there was a reasonable probability of a
different outcome if not for counsel’s error”).7,8
For the reasons given above, we conclude that Appellant’s issues raised
on appeal are waived. To the extent that they are not waived, Appellant’s
claims concerning the investigation into Detectives Pitts and Jenkins and
Officer Dmytryk are meritless, whether as the basis for a Brady claim or an
ineffective assistance of counsel claim. Having discerned no error of law, we
affirm the order below. See Medina, 209 A.3d at 996. As we agree that
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7 Furthermore, when this Court reviewed the sufficiency of the evidence on
direct appeal, it did not rely upon any testimony by Detective Pitts or Officer
Dmytryk to find that the evidence was sufficient to convict Appellant of murder
of the third degree. Ortiz, No. 2518 EDA 2014, at 4 (citing N.T., 2/4/2014,
at 150, 198, 264-65; N.T., 2/5/2014, at 80-82, 95-96, 136, 180, 210-12);
N.T., 2/5/2014, at 29-48 (Detective Pitts’s testimony).
8 We would further observe that, assuming arguendo that Appellant’s final
issue alleging a Brady violation based upon “after-discovered evidence” had
been preserved, an appellant may only needs to prove “after-discovered
evidence” as an exception to the PCRA time bar; however, as Appellant’s
petition was timely, Appellant is not required to establish such facts were
previously unknown to him. See 42 Pa.C.S. § 9545(b)(1); Matters
Complained of on Appeal, 12/21/2018, at 2 ¶ 5.
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Appellant is not entitled to relief, we also grant PCRA counsel’s petition to
withdraw.
Petition to withdraw granted. Order affirmed.
Judge Shogan joins the Memorandum.
Judge King Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/06/2020
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