Com. v. Barreto, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AXEL BARRETO :
:
Appellant : No. 1952 EDA 2020
Appeal from the PCRA Order Entered July 30, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004008-2012
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 16, 2021
Axel Barreto (Barreto) appeals pro se from the order of the Court of
Common Pleas of Philadelphia County (PCRA court) dismissing his first petition
filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
I.
On January 10, 2012, a group of seven teenage boys drove to Barreto’s
house to fight his 14-year-old stepson, Benny Torres (Torres). While they
were parked in an alley near his house, Barreto walked up to their car and
fired 11 shots, killing three of the boys (Joshua Soto, Javier Orlandi and Dante
Lugo) and wounding another (Aaron Marrero). Barreto was arrested the next
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* Retired Senior Judge assigned to the Superior Court.
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day and admitted to the police that he shot into the car. The Commonwealth
charged him with multiple counts of murder and gave notice of its intent to
seek the death penalty. In November 2013, a jury found him guilty of three
counts of first-degree murder, four counts of attempted murder and one count
of possession of an instrument of crime.1 After the jury could not reach a
unanimous decision on the death penalty, Barreto was sentenced to serve
three consecutive life sentences on the murder convictions and concurrent
terms of imprisonment on the remaining convictions. This Court affirmed the
judgment of sentence and our Supreme Court denied allowance of appeal.
Commonwealth v. Barreto, 1258 EDA 2014 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 206 A.3d 489 (Pa. 2019).2
On May 24, 2019, Barreto filed this PCRA petition to allege that the
Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963). He claimed
that the Commonwealth withheld a cell phone that was found during a search
of the victims’ car. The police conducted the search pursuant to a warrant
that was obtained by Philadelphia Police Detective Philip Nordo, a disgraced
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1 18 Pa.C.S. §§ 2502(a), 901 and 907(b). The Commonwealth charged the
offenses in two criminal informations. In this case (4008-2012), Barreto was
charged with, among other offenses, the murders of Joshua Soto and Javier
Orlandi. In the other case (4009-2012), Barreto was charged with the murder
of Dante Lupo. Barreto has filed an appeal in that case at No. 1953 EDA 2020,
which has also been assigned to this panel for disposition.
2 Barreto’s appeals were delayed several years because he had to file PCRA
petitions to have his appellate rights reinstated.
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detective who has been charged with several sexual offenses committed while
he was a detective. According to Barreto, Detective Nordo never inventoried
or submitted the cell phone into evidence, resulting in it never being admitted
at trial.
PCRA counsel was appointed and filed a Turner/Finley letter,3 finding
that the Brady claim relating to the cell phone lacked merit. Counsel first
noted that Detective Nordo’s involvement was limited to the search warrant
as he was not a witness at trial. Moreover, while the search warrant indicated
that a cell phone was recovered, there was no information about who owned
the cell phone. In any event, even if the cell phone belonged to one of the
victims and contained threatening messages sent to Torres, the defense had
those messages because Barreto’s wife gave all the family’s cell phones to the
police.
PCRA counsel also addressed an issue that Barreto wanted raised:
whether trial counsel was ineffective for not calling Torres as a witness at trial.
Counsel did not believe that Barreto could show that the testimony’s absence
was so prejudicial as to have denied him a fair trial. Counsel explained that
the impetus for the shooting was a feud between Torres and the group of
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3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).
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teenagers. Torres, however, never left the house and did not see Barreto fire
into the car. Thus, his testimony would not have helped Barreto’s defense.
Finally, PCRA counsel recognized potential claims relating to two trial
witnesses, Philadelphia Police Detective Nathan Williams and Officer Ohmarr
Jenkins. Detective Williams was charged with tampering and unsworn
falsification several years after the murders, while Officer Jenkins was alleged
to have coerced a confession from a murder suspect, eventually leading to a
civil suit. Neither Detective Williams’ nor Officer Jenkins’ misconduct,
however, was related to Barreto’s case. Thus, any claim involving the two
detectives lacked merit.
After reviewing counsel’s Turner/Finley letter, the PCRA court issued
notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. After
Barreto timely responded to the notice, the PCRA court dismissed his petition
without a hearing, following which Barreto filed this appeal.4
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4 The PCRA court dismissed the petition on July 30, 2020. Despite being dated
August 22, 2020, Barreto’s notice of appeal was not filed until October 16,
2020. It is well-settled that a notice of appeal must be filed within 30 days of
the entry of the order being appealed. See Pa.R.A.P. 903(a);
Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super. 2000). Because
Barreto’s appeal is facially untimely, we directed Barreto to show cause why
this appeal should not be quashed as untimely. Barreto responded that he
timely sent his notice and that his pro se filings were being forwarded to his
PCRA counsel. We note that the postmarked envelope attached to the notice
of appeal is stamped as being received by the Office of Judicial Records on
September 2, 2020, thus corroborating that he timely sent the notice of
appeal.
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II.
Though he lists several issues in his statement of questions involved,
Barreto presents a single, unorganized argument that shifts between different
claims for why he is entitled to relief. Having reviewed his arguments, we
discern three claims: (1) his Brady claim related to the cell phone; (2) trial
counsel not calling Torres as a witness; and (3) the involvement of Detective
Williams and Officer Jenkins in his case.5
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We also note that the PCRA court’s docket does not indicate the date that
Barreto was served with the dismissal. See Pa.R.Crim.P. 114(c)(2)(c) (docket
entries “shall contain” the “date of service of the order”); Pa.R.Crim.P. 907(4)
(an order dismissing a petition without a hearing “shall advise the
defendant...of the time limits within which the appeal must be filed”);
Pa.R.A.P. 108(a)(1), (d)(1) (the appeal period only begins running on the date
the Clerk “mails or delivers copies of the order to the parties”). As a result,
when there is a docketing failure or lack of notice, we will excuse an untimely
appeal. See Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super.
2000) (finding a breakdown in the PCRA court and deeming the PCRA
petitioner’s appeal timely where Clerk of Courts failed to notify the petitioner
of the order denying collateral relief). Our review confirms that the Clerk of
Courts failed to note on the docket when Barreto was served with the PCRA
court’s July 30, 2020 dismissal order. Thus, we will not quash Barreto’s
appeal.
5 This Court’s standard of review regarding an order dismissing a PCRA petition
is to ascertain whether “the determination of the PCRA court is supported by
the evidence of record and is free of legal error. The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the certified
record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)
(citations omitted). Further, “[t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super.
2019) (citation omitted).
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A.
First, Barreto reasserts his Brady claim related to the police finding a
cell phone obtained by Detective Nordo pursuant to a search warrant. Though
he can only speculate about the cell phone’s contents, Barreto argues that the
Commonwealth was obligated to turn over the cell phone to his defense
attorney, as it may have contained exculpatory evidence. Barreto again
emphasizes that Detective Nordo was not called as a witness at trial and was
later criminally charged for offenses that he committed in his role as a
detective. Barreto adds that the search warrant was approved by an assistant
district attorney who was also later charged with committing criminal offenses.
Under Brady, the prosecution’s failure to disclose exculpatory evidence
violates a defendant’s Fourteenth Amendment due process rights.
Commonwealth v. Ly, 980 A.2d 61, 75 (Pa. 2009). To establish a Brady
violation, the burden is on the defendant to plead and prove that “(1) the
prosecutor has suppressed the evidence; (2) the evidence, whether
exculpatory or impeaching, is helpful to the defendant; and (3) the
suppression prejudiced the defendant.” Commonwealth v. Carson, 913
A.2d 220, 244 (Pa. 2006). In assessing prejudice under Brady, favorable
evidence is material and constitutional error results from its suppression by
the government if there is a reasonable probability that, had the
Commonwealth disclosed the evidence, the result of the proceeding would
have been different. Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa.
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2013). Reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. In determining if the petitioner has shown a
reasonable probability of a different outcome, the question is not whether the
defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence. Id. “The mere possibility
that an item of undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not establish materiality in
the constitutional sense.” Commonwealth v. Chambers, 807 A.2d 872, 887
(Pa. 2002).
In response to Barreto’s argument, the Commonwealth relies on the
PCRA court’s analysis on this issue. That analysis was as follows:
In essence, [Barreto] claims he was prejudiced at trial
because former [Detective Nordo] did not testify; [Barreto] did
not receive the cell phone recovered by Nordo; the cell phone
recovered by Nordo contains Brady material; and the warrant
used to recover the cell phone was approved by former Assistant
District Attorney (“ADA”), Lynn Nichols.
***
Initially, this claim fails because evidence regarding the cell
phone was not unavailable. The defense was aware of the warrant
for the cell phone and its recovery. Evidence from the cell phone
was not used because it was irrelevant. [Barreto’s] wife testified
that she turned over all of the family’s cell phones as well as a
laptop computer. Any messages contained on the cell phone
sought by Detective Nordo would only be relevant if they were
sent to Benny Torres. Had messages been sent to Torres from
that phone, Police would have had access to them on the family’s
phones and computer already in police custody. [Barreto]
attempts to make it an issue simply because Nordo recovered the
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cell phone and ADA Nichols signed the warrant for it-both of whom
were fired from their positions and charged with crimes after the
[Barreto’s] conviction.
By way of background, Philip Nordo was fired from the
Philadelphia Police Department prior to being arrested and
charged with numerous counts of rape and related sexual
offenses. Specifically, Philip Nordo is accused of having sexually
assaulted a number of male witnesses and suspects during
interrogations and intimidating them to remain silent. Several
cases in which Nordo was involved have either been overturned
or downgraded and several civil lawsuits are pending against him.
Former ADA Lynn Nichols, on the other hand, was forced to resign
from the Philadelphia District Attorney’s Office because she
obstructed justice by having her boyfriend’s vehicle-which had
been reported stolen-removed from a police database of stolen
vehicles. When she discovered her boyfriend had cheated on her,
Nichols then reported the vehicle stolen and had it towed by
police. Nichols pled guilty to a misdemeanor for misusing her
authority, and Nordo’s case remains open. However, neither had
any role in this investigation other than that which was just
mentioned.
[Barreto’s] claim is merely a bald assertion that Nordo’s and
Nichol’s de minimis involvement is indicative that misconduct
must have occurred, and therefore, there must be Brady
information on the phone. That simply is not true. Therefore, this
claim lacks merit.
PCRA Court Opinion (PCO), 12/15/20, at 17-18.
We agree with this analysis. We would add only that Barreto fails to
explain how he was prejudiced, even if the cell phone was suppressed and
would have been helpful to his defense. As noted earlier, Barreto admitted to
the police that he fired multiple shots into the car. At trial, Barreto presented
a justification defense and testified on his own behalf. Barreto admitted that
he began firing as soon as he saw the car, even though the victims did not
point a gun or say anything before he began firing. In fact, Barreto continued
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to fire into the car even as it drove to get away. Barreto’s version matched
that of the four surviving victims, all of whom testified that Barreto walked up
to the car and just began firing. Based on these facts, we fail to see how the
contents of the cell phone, which presumably belonged to one of the victims,
would have materially helped his defense. As the PCRA court observed, even
if the cell phone contained threatening messages to Barreto’s stepson, his trial
counsel already had access to those messages because Barreto’s wife gave
the police all the family’s cell phones for the investigation. For these reasons,
Barreto’s claim lacks merit.
Barreto also argues that PCRA counsel was ineffective for not raising
trial counsel’s ineffectiveness for not obtaining the cell phone during pretrial
discovery.6 The law presumes counsel has rendered effective assistance and
the burden of demonstrating ineffectiveness rests with the petitioner. See
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To
satisfy this burden, the petitioner 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
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6 Barreto preserved this claim in his response to the PCRA court’s Rule 907
notice. See Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014)
(petitioner must preserve challenge to PCRA counsel’s effectiveness by
responding to Rule 907 notice or raising issue while PCRA court retains
jurisdiction).
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ineffectiveness, there is a reasonable probability that the outcome of the
challenged proceeding would have been different.” Commonwealth v. Holt,
175 A.3d 1014, 1018 (Pa. Super. 2017) (citation omitted). A petitioner must
prove all three factors or the claim fails. See Commonwealth v.
Baumhammers, 92 A.3d 708, 719 (Pa. 2014). Additionally, where a
petitioner asserts a layered claim of ineffectiveness, he must plead and prove
each prong of the three-prong ineffectiveness test for each of the attorneys
involved. See Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011).
Even if trial counsel should have obtained the cell phone and lacked a
reasonable basis for not doing so, Barreto cannot show that there is a
reasonable probability that the outcome of his trial would have been different.
There was no dispute that Barreto fired multiple rounds into the car, killing
three teenagers and wounding another. The factual dispute centered on
whether he was justified in doing so. Besides the victims’ testimony rebutting
this, Barreto’s own testimony disproved any notion that he was justified in
opening fire as soon as he came upon the car. This being the case, PCRA
counsel was not ineffective for failing to file an amended petition raising trial
counsel’s effectiveness for not obtaining the cell phone.7
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7 Barreto also raises a one-paragraph layered ineffectiveness argument based
on him receiving consecutive sentences for a single assault, arguing that his
aggregate sentenced constituted a double jeopardy violation. However, “a
single act which injures multiple victims can be the basis for multiple
sentences.” Commonwealth v. Frisbie, 485 A.2d 1098, 1100 (Pa. 1984).
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B.
Next, Barreto argues that he was prejudiced by trial counsel not calling
Torres as a witness at trial, since the group of teenagers went to Barreto’s
house because of threats between them and Torres. To establish that counsel
was ineffective for failing to call a witness, a petitioner must prove: “(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 prejudicial as to have denied the defendant a
fair trial.” Commonwealth v. Treiber, 121 A.3d 435, 463-64 (Pa. 2015)
(citation omitted).
The PCRA court found that there was no contest that the first four prongs
would be met, since (1) Torres existed, (2) he was available to testify, (3)
trial counsel knew about him, and (4) he was willing to testify. That said, the
PCRA court went on to find that Barreto could not establish the fifth prong of
the claim: that the absence of Torres’s testimony was prejudicial. In so
finding, the PCRA court gave the following explanation:
Initially, it should be noted that trial counsel purposefully
did not call Torres as a defense witness because Torres’ testimony
would be harmful to the defense. N.T., 11/05/2013 at 159. In
fact, a discussion was held on the record regarding the defense’s
decision not to call Torres. N.T., 11/5/13 at 155-59. The
Commonwealth wanted a missing witness instruction since Torres
was “ground zero” for this entire incident since it began with a
feud between his group and [the victims’] group and Torres
possessed the most information regarding how the event
unfolded. Additionally, the defense unsuccessfully attempted to
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keep out Benny Torres’ Facebook posts which were threatening to
the victims, as well as Torres’ interactions with school officials,
which would show that he refused to disclose the names of the
individuals he was feuding with to allow the proper authorities to
quell the situation before it escalated.
Most damming is that Benny Torres gave a statement to
homicide detectives wherein he told detectives, that when his
mother told [Barreto] that Benny told her the victims had a gun,
[Barreto] responded “if they’re going to act like men, I’m going to
treat them like men.” [Barreto] then left the house with a gun.
Being that the victims were 14 and 15 years of age, this testimony
would be extremely damaging to the defendant before a jury.
Based on the above statement by [Barreto], which would
have been admitted had Torres taken the stand, counsel had a
reasonable basis not to call Benny Torres as a defense witness.
Instead, defense counsel chose to call [Barreto’s wife] to establish
that [Barreto] thought the victims may be armed, in order to
establish that he was defending himself.
Furthermore, the evidence presented by the Commonwealth
was overwhelming. The victims did not possess any weapons;
they did not use their car as a weapon, and they were shot in the
back. Even [Barreto] testified that he never saw anything that he
believed to be a weapon; yet he started shooting at the car as
soon as he saw it; and, as the car drove away, [Barreto] continued
to shoot into the back of it.
PCO at 20-21.
We find this reasoning persuasive and, therefore, find that Barreto’s
claim that trial counsel was ineffective for not calling Torres to be meritless.
C.
Finally, Barreto claims that he had potential claims based on the
involvement of Officers William and Jenkins, both of whom later had charges
of misconduct. Barreto appears to assert that this misconduct would affect
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their credibility. Again, however, the PCRA court concisely explained why this
claim lacked any merit.
Officer Nathan Williams was arrested in November of 2020
on charges of tampering with public records, unworn falsification
to authorities, and related offenses. Williams is alleged to have
used his authority and a police database to investigate a woman
who had accused his cousin of stalking and harassment and then
lying to superior officers about it. Officer Williams was called as a
defense witness and his testimony established that [one of the
victims] allowed him access to his Facebook in order to view the
messages exchanged between [the victim] and Benny Torres on
the day of the incident. N.T., 11/1/13 at 25-51. The allegations
brought against Detective Williams, six years after [Barreto’s]
trial, could not have assisted defense counsel in impeaching
Williams’ credibility, as the allegations were not in existence at the
time of [Barreto’s] trial and had no nexus to his work as a
homicide detective.
As for the claim relating to Officer Jenkins, even if PCRA
counsel were to have raised this claim, the Petitioner was not
prejudiced since the Commonwealth could call Detective Henry
Glenn, also present for the interrogation of the Petitioner’s wife
conducted by Officer Jenkins, to establish the same evidentiary
points. N.T., 11/1/2013 at 211.
PCO at 15-16.
Besides the fact that Officer Williams’s misconduct happened well after
the trial, neither officer played a consequential role in the investigation. Thus,
any attack on their credibility would have little effect on the outcome of the
trial, since the ultimate issue at trial was whether Barreto was justified in
shooting at the teenagers in the car. As a result, any potential claim involving
the credibility of Detective Williams or Officer Jenkins would be meritless.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2021
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