Com. v. Rojas, P. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PETER BIENVIENIDO ROJAS
Appellant No. 2735 EDA 2015
Appeal from the PCRA Order August 17, 2015
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002191-2009
BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 28, 2017
Appellant, Peter Bienvienido Rojas, appeals from the order entered
August 17, 2015, denying his petition for collateral relief filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, following a trial
resulting in his conviction for second degree murder and robbery. 1 We
affirm.
A more detailed recitation of the facts may be found in the PCRA
court’s opinion. See PCRA Court Opinion (PCO), 9/15/11, at 3-5. On May
28, 2009, the body of Mark Holdren was discovered in Allentown,
Pennsylvania. He had been stabbed multiple times. Later that day,
Appellant voluntarily went to the Allentown police headquarters to report
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1
18 Pa.C.S. §§ 2502(b), 3701.
*
Former Justice specially assigned to the Superior Court.
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what he claimed was an attempted robbery. Appellant told police officers
that he had been hit in the head from behind, pulled his knife in self-
defense, and stabbed his assailant. Inconsistencies in Appellant’s story, as
well as particular details he related to officers, led police officers to arrest
Appellant for Mr. Holdren’s murder.
Appellant was charged with criminal homicide and robbery. Prior to
trial, Appellant litigated an omnibus pre-trial motion seeking, among other
things, to suppress his statement made to police officers. Appellant also
sought to admit evidence that Mr. Holdren had a Department of Public
Welfare ACCESS card and had stayed at the Allentown Rescue Mission.
Appellant’s motion was denied.
At trial, jurors viewed a videotape of the crime scene. The jury
convicted Appellant of second-degree murder and robbery. Appellant
received a mandatory sentence of life imprisonment for felony murder and a
concurrent sentence of ten to twenty years of incarceration for robbery.
Appellant timely filed post-sentence motions challenging the robbery
sentence. The trial court vacated the merged robbery sentence and denied
Appellant’s remaining issues.
Appellant’s judgment of sentence was affirmed by this Court. See
Commonwealth v. Rojas, 68 A.3d 362 (Pa. Super. 2013) (unpublished
memorandum), appeal denied, 72 A.3d 603 (Pa. 2013).
Appellant subsequently filed a motion for post-conviction DNA testing,
which the court denied. Appellant timely filed the instant petition seeking
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PCRA relief. Counsel was appointed and filed an amended petition. In
March 2015, the PCRA court held an evidentiary hearing.
Trial counsel, John Baurkot, testified that he did not object to the
introduction of the crime scene video because he was concerned about the
possibility of Appellant being convicted for first degree murder and facing the
death penalty. See Notes of Testimony (N.T.), 3/20/15, at 10-11.
Specifically, Mr. Baurkot felt that evidence the victim had been able to walk
away from the crime scene to seek help would support his argument that
Appellant did not have specific intent to kill. Id. at 11. Further, Mr. Baurkot
did not request an instruction on the video because he did not want to draw
further attention to it, as the jury was death penalty qualified and thus likely
to be more conservative. Id. at 16-17.
With regard to the statements Appellant made to police, Mr. Baurkot
testified he did not object to the statement so that Appellant’s side of the
story could be read to the jury without subjecting Appellant to cross-
examination, as Appellant had a prior conviction for robbery. Id. at 30-31.
Following the hearing, the court denied Appellant’s petition.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court issued a responsive opinion.
On appeal, Appellant presents the following questions for our review:
1. Was [Appellant] denied his right to the effective assistance of
counsel under Article 1, § 9 of the Pennsylvania Constitution and
the Sixth Amendment to the United States Constitution where
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counsel failed to timely object to the introduction of the
videotape of the crime scene at trial and/or for failing to request
a curative or cautionary instruction from the court?
2. Did the PCRA court erred [sic] where it denied [Appellant]’s
claim that trial counsel was ineffective for failing to properly
cross-examine Commonwealth witnesses and for failing to
properly argue the pretrial motion to suppress? And was
appellate counsel was [sic] ineffective for failing to raise this
issue on direct appeal?
3. Was trial counsel ineffective in failing to prepare for and
effectively argue that decedent’s ACCESS and Rescue Mission
records were admissible?
4. Was PCRA counsel ineffective for failing to hire a qualified
forensic toxicologist to testify at the evidentiary hearing?
5. [Appellant] was denied his right to effective assistance of
counsel when under Article 1, § 9 of the Pennsylvania
Constitution and the 6th Amendment to the United States
Constitution where direct and PCRA appeal counsels [sic] failed
to challenge the legality of Appellant’s sentence.
Appellant’s Brief at 9-10 (unnecessary capitalization and responsive answers
omitted).
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
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the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. A claim
will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
First, Appellant claims that trial counsel was ineffective for failing to
timely object to the introduction into evidence of crime scene videotapes
that showed the victim’s body. See Appellant’s Brief at 16. Appellant
argues that video tapes have more weight than photographs, and that
accordingly, the admission of the video prejudiced him. Id. at 16-18.
In determining the admissibility of photographs of a murder victim, the
court must employ a two-part analysis:
First[,] a court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has relevance and
can assist the jury’s understanding of the facts. If the
photograph is inflammatory, the trial court must decide whether
or not the photographs are of such essential evidentiary value
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that their need clearly outweighs the likelihood of inflaming the
minds and passions of the jurors . . .
See Commonwealth v. Mollett, 5 A.3d 291, 301-302 (Pa. Super. 2010).
On direct appeal, Appellant challenged the admission of the tapes,
arguing that they were inflammatory and prejudicial. See Rojas, 68 A.3d
362 at *10. Although the Court found the issue waived for failure to
contemporaneously object to the admission of the tapes, the Court also
addressed the merits, concluding:
The video is consonant with the severity of a homicide crime
scene. However, it does not rise to the level of inflammatory
and overwhelmingly prejudicial evidence that would inflame the
minds of the jury. The video plainly would aid the jury in its
ability to understand the Commonwealth’s evidence and is not
overly gruesome. Indeed, we agree with the trial court’s
assessment that the video was “essentially a video recording of
the evidence collection[.]”
See Rojas, 68 A.3d 362 at *13. Following a review of the record, we see
no error in this conclusion. Counsel cannot be deemed ineffective for failing
to raise a meritless claim. Commonwealth v. Fears, 86 A.3d 795, 804
(Pa. 2014).2
Next, Appellant argues that the PCRA court erred when it denied his
claim that trial counsel was ineffective for failing to cross-examine Officer
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2
Appellant’s argument that spectators were upset by the videotape and he
was prejudiced as a result is equally meritless. As the PCRA court, which
also presided over the trial noted, “the reaction to the viewing of the
videotape by the spectator was not shrieking, sobbing or crying out.
Instead, approximately 4 minutes and 45 seconds after the videotape began,
two or three muffled sobs were heard on the audio recording.” See PCO at
11 (emphasis in original).
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Berger and file pre-trial motions to suppress Appellant’s statements to
police. See Appellant’s Brief at 21. Appellant contends that he was in
custody at the time of his interrogation and Officer Berger’s failure to read
him Miranda3 warnings. Id. at 22. Further, he claims appellate counsel
was ineffective for failing to litigate this issue on direct appeal. Id.
A suspect is entitled to Miranda warnings prior to a custodial
interrogation. Commonwealth v. Boyer, 962 A.2d 1213, 1216 (Pa. Super.
2008). “A person is considered to be in custody for purposes of Miranda
when the officer’s show of authority leads the person to believe that [he]
was not free to decline the officer’s request, or otherwise terminate the
encounter.” Commonwealth v. Page, 965 A.2d 1212, 1218 (Pa. Super.
2009).
Here, Appellant was not in custody for purposes of Miranda. He
voluntarily presented himself at the police station to report a robbery and
give a report. As the PCRA court noted,
Upon review of the totality of the circumstances surrounding
[Appellant’s] interaction with Officer Berger, we do not believe
that the officer was required to issue Miranda warnings.
[Appellant], of his own accord, appeared at the police station to
report that he was the victim of a robbery. Officer Berger
initially dealt with [Appellant] as a victim and allowed [Appellant]
to tell him his version of the events in question. When Officer
Berger eventually came to suspect that [Appellant] knew more
about the homicide on Jute Street, he confirmed the information
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3
Miranda v. Arizona, 86 S. Ct. 1602 (1966).
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he had been given and contacted detectives to further the
homicide investigation.
PCO at 14 (emphasis in original). We see no error in this conclusion.
Accordingly, counsel cannot be found ineffective for failure to litigate a
meritless claim. Fears, 86 A.3d at 804.
Next, Appellant claims that trial counsel was ineffective in failing to
prepare for and effectively argue that the victim’s ACCESS and Rescue
Mission records were admissible. See Appellant’s Brief at 28. Appellant
argues that counsel “picked an argument that could not win,” and that, if
counsel had argued that the evidence was admissible as evidence of the
victim’s state of mind, the evidence would have been admitted. Id.
Appellant claims the records contained evidence of Mr. Holdren’s psychiatric
history and history of drug abuse and that several hearsay exceptions would
have allowed for the admission of this evidence. Id. at 29. This argument
lacks arguable merit.
We note, initially, that Appellant’s characterization of trial counsel’s
actions is incorrect. He asserts trial counsel’s argument that the records
were admissible as prior bad acts was imprudent and could not win. See
Appellant’s Brief at 28. However, an examination of the record reflects that
trial counsel did not raise prior bad acts as an argument for admissibility.
This argument was raised by appellate counsel on direct appeal. During
argument on the motion in limine, trial counsel argued 1) that Mr. Holdren’s
ACCESS card was empty of benefits at the time of his death, and 2) the
questionnaire Mr. Holdren filled out at the Rescue Mission indicated that he
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was addicted to heroin, had not done drugs in a year, and was without
money. See N.T., 3/3/11, at 31-33. As the autopsy of Mr. Holdren revealed
cocaine in his system, trial counsel argued this evidence was relevant to
show that Mr. Holdren was the aggressor and that Appellant had acted in
self-defense. Id. at 33-34.
In reviewing the denial of a motion in limine, “we apply an evidentiary
abuse of discretion standard of review.” Commonwealth v. Owens, 929
A.2d 1187, 1190 (Pa. Super. 2007). The admission of evidence is within the
sound discretion of the trial court and will not be overturned absent an
abuse of that discretion. Id. Evidence is admissible if it is relevant, and if
its probative value outweighs unfair prejudice. See Commonwealth v.
Tyson, 119 A.3d 353, 358 (Pa. Super. 2015). Evidence is relevant if it has
a tendency to make a fact more or less probable than it would be without
the evidence, and the fact is of a consequence in determining the action.
Id.; see also Pa.R.E. 401. “Evidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at issue more or
less probable or supports a reasonable inference or presumption regarding a
material fact.” Tyson, 119 A.3d at 358 (internal citation omitted).
The trial court found the evidence at issue irrelevant to Appellant’s
claim of self-defense. See PCO at 15-16. On appeal, this Court also found
that evidence of the victim’s financial struggles irrelevant to the issue of
whether he would have attacked Appellant. See Rojas, 68 A.3d 362, *5.
We find no error in this conclusion. Johnson, 966 A.2d at 533.
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Appellant’s arguments regarding the victim’s alleged “psychiatric
history” are equally unavailing. At best, Appellant has established that Mr.
Holdren filled out a questionnaire indicating he was addicted to heroin. At
the hearing, counsel also indicated the questionnaire may have stated that
Mr. Holdren suffered from suicidal ideation and depression. See N.T.,
3/11/11, at 35. This evidence would not establish that Mr. Holdren was
more likely to have attacked Appellant and, accordingly, was not relevant to
Appellant’s claim of self-defense. See Tyson, 119 A.3d at 358. Thus,
Appellant is not entitled to relief on this claim, as the underlying legal issue
is without arguable merit. Johnson, 966 A.2d at 533.
Next, Appellant argues that PCRA counsel was ineffective for failure to
hire a qualified forensic toxicologist to testify at the evidentiary hearing that
Mr. Holdren’s cocaine use, combined with methadone and “his untreated
psychiatric conditions,” would have made him aggressive. See Appellant’s
Brief at 33. He contends that, backed by an expert’s testimony, his self-
defense claim would have been more compelling than his denial of guilt. Id.
at 34. Appellant claims that he requested PCRA counsel raise this issue
before the court but that she refused to do so. Id. at 33-34.
To establish ineffective assistance of counsel for failure to call a
witness, the petitioner must establish 1) the witness existed; 2) the witness
was available to testify for the defense; 3) counsel knew of, 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
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prejudicial as to have denied the petitioner a fair trial. See
Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012). With regard to
expert witnesses, the defendant must articulate what evidence was available
and identify the witness who was willing to offer such evidence. See
Commonwealth v. Gwynn, 723 A.2d 143, 151 (Pa. 1998).
Here, Appellant has failed to meet the standard to establish ineffective
assistance. Appellant has not provided the name of the toxicologist he
would have called or any evidence that the toxicologist would have testified
on his behalf at trial. Nor has Appellant detailed any medical or scientific
testimony beyond a bald assertion that a toxicologist “could have proven”
that cocaine would have made Mr. Holdren aggressive. Accordingly, he has
not established ineffective assistance of counsel. See Sneed, 45 A.3d at
1109; Johnson, 966 A.2d at 533.
Finally, Appellant argues that he was denied his right to effective
assistance of counsel where appellate counsel and PCRA counsel failed to
challenge the legality of his sentence. See Appellant’s Brief at 36.
Appellant claims he did not have formal and specific notice of the charges
against him, because he was accused with the “open” charge of criminal
homicide, 18 Pa.C.S. § 2501, but found guilty of second degree murder, 18
Pa.C.S. § 2502(b). Id. Appellant also claims that a sentence of life
imprisonment imposed pursuant to 18 Pa.C.S. § 1102(b) is unlawful.
As Appellant did not raise this claim in his PCRA petition or in his
1925(b) statement, it is waived for purposes of appeal. Washington, 927
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A.2d at 601; see also Pa.R.A.P. 302 (stating “issues not raised in the lower
court are waived and cannot be raised for the first time on appeal”); see
also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any
issues not raised in a [Rule] 1925(b) statement will be deemed waived.”).
Additionally, Appellant claims that PCRA counsel was ineffective in her
representation. However, claims of PCRA counsel’s ineffectiveness may not
be raised for the first time on appeal. Commonwealth v. Henkel, 90 A.3d
16, 20 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014).
Accordingly, Appellant is not entitled to relief on these claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2017
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