Com. v. Santos, J. ( 2021 )

J-S13012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JIMMY SANTOS :
:
Appellant : No. 1037 EDA 2020
Appeal from the PCRA Order Entered February 21, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0015316-2013
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED JUNE 1, 2021
Appellant, Jimmy Santos, appeals from the order entered on February
21, 2020, which dismissed his petition filed under the Post-Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
As the PCRA court ably explained, the underlying facts of this case are
as follows:
Abba Abukanan was a drug addict. A few days before
October 25, 2012, Abukanan went to the area of 5th and
Cornwall Streets in Philadelphia to purchase illegal drugs
[from Appellant and Appellant’s co-defendant, William
Colon,] using counterfeit money. [Appellant and Colon] did
not appreciate that Abukanan was attempting to pawn off
fake money to them and an altercation ensued. [Appellant]
and Colon chased Abukanan off the block and told him not to
come back. Abukanan, being a drug addict[,] returned on
October 25, 2012, money in hand to buy more illicit drugs.
When Abukanan was recognized, [Appellant and Colon] were
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* Retired Senior Judge assigned to the Superior Court.
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alerted to his presence. [Appellant] shot Abukanan in the left
wrist and leg. Colon then shot Abukanan in the back of the
head. When police arrived on the scene, Abukanan was
found dead, with three gunshot wounds and the money still
gripped in his hand.
PCRA Court Opinion, 7/15/20, at 2-3 (citations omitted).
A jury found Appellant guilty of third-degree murder, violations of the
Uniform Firearms Act (“VUFA”), and possessing an instrument of crime
(“PIC”).1 On June 19, 2015, the trial court sentenced Appellant to serve an
aggregate term of 30 to 60 years in prison for his convictions. We affirmed
Appellant’s judgment of sentence on September 19, 2016 and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on January 10, 2017. Commonwealth v. Santos, 158 A.3d 181 (Pa.
Super. 2016) (unpublished memorandum) at 1-11, appeal denied, 165 A.3d
873 (Pa. 2017).
Appellant filed a timely, pro se PCRA petition on June 16, 2017. The
PCRA court appointed counsel to represent Appellant during the proceedings
and counsel eventually filed an amended petition on Appellant’s behalf.
On January 22, 2020, the PCRA court provided Appellant with notice
that it intended to dismiss his petition in 20 days, without holding a hearing.
PCRA Court Order, 1/22/20, at 1; see also Pa.R.Crim.P. 907(1). The PCRA
court finally dismissed Appellant's petition on February 21, 2020 and Appellant
filed a timely notice of appeal. Appellant raises three claims on appeal:
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1 18 Pa.C.S.A. §§ 2502(c), 6101 et seq., and 907(a), respectively.
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[1.] Was [Appellant] denied his constitutional right to
effective assistance of trial counsel, in that counsel failed to
protect his client’s rights in failing to properly disclose his
conflict of interest in that he represented the
Commonwealth’s eyewitness, Julio Rosa[,] in two separate
criminal cases?
[2.] Was [Appellant] denied his sixth amendment right to
assistance of trial counsel, in that counsel failed to protect his
client’s rights in failing to have presented meaningful
adversarial testing of the Commonwealth’s evidence
including failure to file a motion in limine and/or object to
hearsay evidence and evidence of prior bad acts of
[Appellant] and [Colon] running the drug corner?
[3.] Was counsel’s trial strategy to admit that his client shot
the victim in the left wrist and leg, nonfatal wounds, and
argue that [Appellant and Colon] did not act in concert with
one another[,] as there was no conspiracy between the two
defendants ineffective?
Appellant’s Brief at 4.
“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-determining
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process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
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probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). “A failure to satisfy any prong of the test
for ineffectiveness will require rejection of the claim.” Id.First, Appellant claims that his trial counsel was ineffective because
counsel “fail[ed] to properly disclose his conflict of interest in that he
represented the Commonwealth’s eyewitness, Julio Rosa[,] in two separate
criminal cases.” Appellant’s Brief at 4. However, within the argument section
of Appellant’s brief, Appellant did not support this claim with any argument
whatsoever. See id. at 8. As such, Appellant waived his first claim on appeal.
Commonwealth v. Miller, 721 A.2d 1121, 1124 (“[w]e decline to become
appellant's counsel. When issues are not properly raised and developed in
briefs, when briefs are wholly inadequate to present specific issues for review,
a court will not consider the merits thereof”) (quotations and citations
omitted).2
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2 Even if Appellant had preserved this claim, the claim would have failed on
the merits because Appellant was well aware of the fact that his trial counsel
previously represented Mr. Rosa in two unrelated criminal cases. Indeed, the
trial court conducted a thorough colloquy on the issue and, at the end of the
colloquy, Appellant expressly stated that he wanted trial counsel to continue
representation, even though trial counsel had previously represented Mr. Rosa
in two unrelated criminal cases. See N.T. Trial, 1/8/15, at 4-7 (Appellant’s
counsel expressly informed Appellant that counsel had represented Mr. Rosa
in two unrelated criminal cases and, at the end of the colloquy, counsel asked
Appellant “[d]o you want me to continue to represent you?,” with Appellant
responding “[y]es, sir;” see also Trial Court Opinion, 7/15/20, at 5-7.
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Next, Appellant claims that his trial counsel was ineffective because
counsel failed “to file a motion in limine and/or object to hearsay evidence and
evidence of prior bad acts of [Appellant] and [Colon] running the drug corner.”
Again, Appellant failed to support this claim with any cogent argument or legal
discussion. Thus, Appellant waived his second claim on appeal. See Miller,
721 A.2d at 1124.
Finally, Appellant claims that his trial counsel was ineffective in
admitting that Appellant “shot the victim in the left wrist and leg . . . and
argu[ing] that [Appellant and Colon] did not act in concert with one another.”
Appellant’s Brief at 10. According to Appellant, trial counsel’s strategy was
flawed because “[t]he defense of admitting that [Appellant] only wanted to
wound the deceased victim by shooting him twice fails to recognize that . . .
the trial court would instruct the jury on accomplice liability, which would
permit the jurors to find [Appellant] guilty of murder in the third degree.” Id.
at 10 and 12 (some capitalization omitted).
The PCRA court concluded that Appellant’s claim failed because:
it is crystal clear that counsel zealously argued to the jury
that [Appellant] was neither a co-conspirator, nor an
accomplice of William Colon. Counsel not only anticipated
the charge for conspiracy and accomplice liability but
presented a zealous argument to the jury that [Appellant]
was neither an accomplice nor a co-conspirator. It is
noteworthy that the jury found [Appellant] only guilty of
[third-degree] murder, while at the same time convicting Mr.
Colon of murder in the first degree. Counsel skillfully
presented an able defense despite the fact that
[Appellant] admitted to shooting the [victim,] which
two eyewitnesses corroborated. The law is clear that a
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strategy, chosen by trial counsel, will not be found to have
lacked a reasonable basis unless it is proven that an
alternative not chosen offered a substantially greater chance
of success than the course pursued. As such, [Appellant’s
claim] is without merit.
PCRA Court Opinion, 7/15/20, at 12-13 (citations omitted) (emphasis added).
In this case, Appellant admitted to the police that he shot the victim,
two eyewitnesses provided sworn statements to the police that Appellant shot
the victim, and the physical evidence corroborated the fact that two separate
guns were used to murder the victim. Given these facts, we agree with the
PCRA court that Appellant’s trial counsel had a reasonable basis for admitting
that Appellant shot the victim and “argu[ing] that [Appellant and Colon] did
not act in concert with one another.” See Appellant’s Brief at 10. Simply
stated, given the facts of the case, we agree with the PCRA court that
Appellant could not prove, by a preponderance of the evidence, that “no
competent counsel would have chosen [the action of Appellant’s trial counsel],
or, the alternative, not chosen, offered a significantly greater potential chance
of success.” Stewart, 84 A.3d at 707 (quotations and citations omitted).
Thus, Appellant’s claim on appeal fails.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/01/2021
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