Com. v. Valdez-Torres, R.

J-S34021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAFAEL VALDEZ-TORRES :
:
Appellant : No. 303 MDA 2021
Appeal from the PCRA Order Entered February 11, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000811-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 20, 2022
Rafael Valdez-Torres appeals pro se from the denial of his first petition
pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Valdez-Torres claims that trial counsel rendered ineffective assistance
when he advised Valdez-Torres not to testify on his own behalf and by failing
to challenge on direct appeal the denial of his suppression motion. Valdez-
Torres additionally claims that the PCRA court erred when it accepted counsel’s
Turner/Finley1 letter and permitted counsel to withdraw. We affirm.
This Court summarized the factual history of this case on direct appeal.
On October 10, 2017, Joseph Becker (“Becker”) and his friends
went to the 200 block of Rowe Street, in Tamaqua Borough, to
purchase heroin from Maria Lewis (“Lewis”). Lewis was the
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1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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girlfriend of Valdez-Torres. Becker was acquainted with Valdez-
Torres, and knew him by the name of “Flacko.”
Upon arriving at the 200 block of Rowe Street, Becker approached
Lewis’s residence by means of the back yard. As he did so, Valdez-
Torres approached and asked Becker whether he had drugs to sell.
Becker stated that he had methamphetamine. When Valdez-
Torres asked to purchase some of the narcotics, Becker offered to
give him some. Becker pulled out a roll of money from his pocket,
withdrew a one-dollar bill, folded it in half, put methamphetamine
on the bill, and gave it to Valdez-Torres. Becker gave Valdez-
Torres another dollar bill, which Valdez-Torres used to snort the
narcotics. Valdez-Torres then withdrew a firearm from his
waistband and demanded $300 from Becker. Valdez-Torres
claimed that Becker owed him the $300. When Becker refused to
pay, Valdez-Torres shot him in the chest. After being shot, Becker
ran between the houses to the street. As he ran, he heard another
gunshot, and a bullet passed by his head. When Becker reached
his friends, they called for help. Becker was life-flighted to the
hospital, where he remained for three weeks. Becker subsequently
told police that Valdez-Torres was his assailant.
Commonwealth v. Valdez-Torres, No. 486 MDA 2019, unpublished
memorandum at 1 (Pa.Super. filed December 24, 2019).
Chief Henry Woods, who was then a corporal with Tamaqua Borough
Police, interviewed Valdez-Torres after his arrest. Chief Woods gave him
Miranda2 warnings, and Valdez-Torres agreed to continue with questioning,
and thereafter admitting having shot Becker. See N.T. Trial, 2/6/19, at 137-
39.
Prior to trial, counsel filed a motion to suppress the statement claiming
that Chief Woods induced him into relinquishing his right to remain silent. See
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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Memorandum in Support of Omnibus Pre-Trial Motion, 9/19/18, at
unnumbered pages 5-7. The trial court denied the motion.
After trial, a jury convicted Valdez-Torres of two counts each of
aggravated assault, attempted murder, and attempted robbery, and one count
each of simple assault and recklessly endangering another person. 3 The trial
court sentenced Valdez-Torres to an aggregate prison term of 26 to 52 years.4
Valdez-Torres filed a direct appeal challenging the sufficiency of the
evidence to support his convictions for attempted murder and attempted
robbery. This Court affirmed the judgment of sentence on December 24, 2019.
Valdez-Torres did not petition our Supreme Court for an allowance of appeal.
In September 2020, Valdez-Torres filed a timely pro se first PCRA
petition. The court appointed counsel, who filed a Turner/Finley no-merit
letter and motion to withdraw as counsel. On December 18, 2020, the PCRA
court granted counsel’s motion to withdraw and gave notice of its intent to
dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). Valdez-
Torres filed a pro se response to the court’s notice of intent to dismiss. On
February 11, 2021, the PCRA court dismissed the petition without a hearing.
This timely appeal followed.
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3 See 18 Pa.C.S.A. §§ 2702, 901, 2502, 3701, 2701, and 2705, respectively.
4The trial court merged the sentences for aggravated assault and recklessly
endangering another person.
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Valdez-Torres raises two issues on appeal, which we have reproduced
verbatim.
Petitioner pleads and asserts (2) layers claims of Ineffectiveness
for this courts review:
a. Collateral counsel Ineffective for failing to find trial counsel
Ineffective, for failing to appeal the denial of the
Suppression Motion regarding pre trial statements to police
as a result of pre Miranda threats Petitioner received without
a translator present, where Petitioner couldn’t effectively
speak English
b. Collateral counsel ineffective, for failing to find trial counsel
ineffective for trial counsel erroneously advising Petitioner not
to testify on his own behalf
2. Whether the lower court erred by allowing counsel to withdraw
and forcing appellant to proceed Pro se although the issues are of
arguable merit and the courts [sic] decision to allow counsel to
withdraw constructively denied appellant access to the court
during the appellants PCRA litigation.
Valdez-Torres’ Br. at unnumbered page 8.
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019). “This Court may affirm a PCRA
court’s decision on any grounds if the record supports it.” Commonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (citation omitted).
Valdez-Torres claims that he was eligible for relief because trial counsel
rendered ineffective assistance at trial by failing to appeal the denial of his
motion to suppress and by advising him not to testify of his own behalf. See
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Valdez-Torres’ Br. at unnumbered pages 12-16. We consider each claim
individually.
A petitioner who raises a claim of ineffective assistance of counsel must
overcome the presumption that counsel is effective. See Commonwealth v.
Mason, 130 A.3d 601, 618 (Pa. 2015). To do so, the petitioner must plead
and prove the following: “(1) the legal claim underlying the ineffectiveness
claim has arguable merit; (2) counsel’s action or inaction lacked any
reasonable basis designed to effectuate petitioner’s interest; and (3) counsel’s
action or inaction resulted in prejudice to petitioner.” Id. (citation omitted).
We need not analyze the prongs of an ineffectiveness claim in any
particular order. Rather, we may discuss first any prong that an
appellant cannot satisfy under the prevailing law and the
applicable facts and circumstances of the case. [C]ounsel cannot
be deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citations
omitted). Failure to meet any one prong of the test will defeat a petitioner’s
ineffectiveness claim. See Commonwealth v. Basemore, 744 A.2d 717, 738
n.23 (Pa. 2000).
To demonstrate prejudice, appellant must show there is a
reasonable probability that, but for counsel’s error, the outcome
of the proceeding would have been different. When it is clear the
party asserting an ineffectiveness claim has failed to meet the
prejudice prong of the ineffectiveness test, the claim may be
dismissed on that basis alone, without a determination of whether
the first two prongs have been met.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa.Super. 2013) (citation
omitted).
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In his first claim of ineffective assistance, Valdez-Torres argues that trial
counsel was ineffective by failing to challenge on appeal the denial of his
motion to suppress pretrial statements to police. He claims that the
statements should have been suppressed because he could not understand
the Miranda warnings because of his limited ability to speak English.
Upon review, we conclude that, Valdez-Torres has not demonstrated
that he suffered any prejudice from counsel’s alleged ineffectiveness. At trial
Becker, the victim, testified that Valdez-Torres demanded that Becker pay him
$300 and, when Becker refused to do so, Valdez-Torres pulled a gun from his
waistband and pointed it at Becker’s chest. See N.T. Trial, at 60-61. Becker
testified that Valdez-Torres then shot him in the chest at arm’s length. Becker
then testified that he pushed Valdez-Torres away and ran towards the front of
the house. See id. at 65. Becker explained that as he was running down the
street he heard another shot but was not hit. See id. at 68.
This testimony, even without Valdez-Torres’ incriminating statement,
would have been sufficient to sustain his convictions. Accordingly, Valdez-
Torres has not demonstrated a reasonable probability that the outcome of the
proceeding would have been different if the suppression motion had been
granted. See Michaud, 70 A.3d at 867. Because he cannot prove that he was
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prejudiced by counsel’s alleged error, Valdez-Torres has not established that
he is eligible for relief because of counsel’s alleged ineffective assistance. 5
With respect to his second claim of ineffective assistance, Valdez-Torres
alleges that counsel rendered ineffective assistance by advising him not to
testify at trial. He claims that he told trial counsel that he would like to testify
to explain his version of events, but trial counsel told him that doing so would
“mess everything up.” Valdez-Torres’ Br. at unnumbered page 12. Valdez-
Torres argues that counsel’s action infringed on his right to testify on his own
behalf, and there was no reasonable basis for counsel’s advice. He argues that
he was prejudiced by counsel’s advice because his version of events could
have reshaped the case. See id. at unnumbered pages 13-14.
“[W]here a defendant voluntarily waives his right to testify after a
colloquy, he generally cannot argue that trial counsel was ineffective in failing
to call him to the stand.” Commonwealth v. Rigg, 84 A.3d 1080, 1086
(Pa.Super. 2014) (citations omitted). However, there are limited instances
where, despite a colloquy, counsel can be found ineffective.
In order to sustain a claim that counsel was ineffective for failing
to advise the appellant of his rights in this regard, the appellant
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5 Moreover, there is nothing in the record to indicate that Valdez-Torres has
any trouble understanding or speaking the English language. As counsel
explained in his Turner/Finley no merit letter, the video of the interview
during which Valdez-Torres admitted to shooting Becker, does not show any
indication that Valdez-Torres had difficulty speaking or understanding English.
Furthermore, Valdez-Torres proceeded through the entirety of his trial and
sentencing without the aid of an interpreter and without any indication that
he had any difficulty understanding what was being said.
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must demonstrate either that counsel interfered with his right to
testify, or that counsel gave specific advice so unreasonable as to
vitiate a knowing and intelligent decision to testify on his own
behalf.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations
omitted).
In Nieves, trial counsel advised the defendant not to testify by
informing him that if he did so, he would be impeached with his prior criminal
record including those convictions that did not involve dishonestly. Our
Supreme Court agreed that the advice was clearly unreasonable because the
offenses not involving dishonesty or false statements would not have been
admissible to impeach his credibility. Because the defendant’s decision not to
testify was based solely on this erroneous advice, the Court held that it was
not knowing or intelligent. See id. at 1104-05.
Here, Valdez-Torres explained that before trial he spoke with his
attorney about testifying on his own behalf in order to explain his version of
events wherein he admits to shooting Becker but alleges that he only did so
after Becker attempted to disarm him. See Valdez-Torres’ Br. at unnumbered
page 12. He argues that counsel’s advice was unreasonable because a person
has a right to be heard in his own defense, and therefore he alleges that when
counsel advised him not to testify, he interfered with the right to testify. See
id. at 13.
As Valdez-Torres himself asserts, he discussed whether or not he should
testify with counsel and, based on trial strategy, counsel advised that Valdez-
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Torres not attempt to personally explain his version of events. Even accepting
Valdez-Torres’s allegations as true, his claims are insufficient to show that
counsel’s advice was so unreasonable as to vitiate a knowing and intelligent
decision to testify. See Nieves, 746 A.2d at 1104. Valdez-Torres is not
entitled to relief based on his second claim of ineffective assistance.
In his final issue, Valdez-Torres claims that the PCRA court erred in
granting counsel’s petition to withdraw. He claims that his case has
meritorious issues, and therefore the PCRA court violated his right to counsel
when it permitted counsel to withdraw. See Valdez-Torres’s Br. at
unnumbered pages 17-18.
As a first time PCRA petitioner, Valdez-Torres is entitled to the
assistance of counsel to represent him diligently and competently until counsel
withdraws his or her appearance. See Commonwealth v. Librizzi, 810 A.2d
692, 693 (Pa.Super. 2002). “[C]ounsel may withdraw at any stage of collateral
proceedings if, in the exercise of his or her professional judgment, counsel
determines that the issues raised in those proceedings are meritless and if the
post-conviction court concurs with counsel’s assessment.” Commonwealth
v. Glover, 738 A.2d 460, 463 (Pa.Super. 1999).
Counsel requesting to withdraw from PCRA representation must file a
“no-merit” letter or brief that conforms to the requirements of Turner and
Finley. See Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012).
A “no-merit” letter must detail “the nature and extent of counsel’s diligent
review of the case, listing the issues which petitioner wants to have reviewed,
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explaining why and how those issues lack merit, and requesting permission to
withdraw.” Id. (citation omitted). Counsel must send the petitioner a copy of
the “no-merit” letter, a copy of counsel’s petition to withdraw, and “a
statement advising petitioner of the right to proceed pro se or by new
counsel.” Id. (citation omitted). If counsel fulfills these requirements, then
the PCRA court must conduct its own review of the case, and, if the claims are
without merit, permit counsel to withdraw. See id.Here, counsel’s no-merit letter detailed the nature of the case, listed the
issues Valdez-Torres wanted to have reviewed, and explained counsel’s
reasoning for concluding that the issues were meritless. Counsel sent a copy
of the no-merit letter and petition to Valdez-Torres and informed him that he
could proceed with privately retained counsel or pro se. See Letter from
Counsel to Valdez-Torres, dated November 30, 2020. The PCRA court
conducted its own review of the case and concluded that there were no
meritorious issues. See Trial Ct. Op., 4/28/21, at 4-9. We find that counsel
complied with the dictates of Turner/Finley and conclude that the PCRA court
did not err in granting the petition to withdraw.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/20/2022
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