Com. v. Garcia, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JUAN CARLOS GARCIA :
:
Appellant : No. 1937 EDA 2017
Appeal from the PCRA Order May 25, 2017
In the Court of Common Pleas of Montgomery County Criminal Division at
No(s): CP-46-CR-0000448-2014,
CP-46-CR-0008438-2014
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 14, 2018
Juan Carlos Garcia appeals from the denial of his first PCRA petition.
We affirm.
We restate the factual and procedural background, as ably set forth by
the trial court:
[Appellant] entered open guilty pleas in the above-indexed
cases on January 12, 2015, to three counts of robbery and three
counts of conspiracy. The Commonwealth nolle prossed
approximately 300 additional counts. The charges stemmed
from [Appellant’s] participation in armed robberies at three
separate restaurants while they were occupied by employees
and/or patrons
More specifically, [Appellant] admitted for purposes of the
case indexed at 448-14, that, on November 4, 2013, he entered
the Whitpain Tavern in Montgomery County and threatened eight
individuals inside with serious bodily injury, placing them in fear
for their lives while taking or attempting to take property from
them. [Appellant] admitted that he possessed a BB gun during
the robbery, while his co-conspirator, Tyrice Griffin, possessed a
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firearm. He also admitted that he conspired with Griffin to
commit the robbery.
[Appellant] admitted in the case indexed at 8438-14 that
he and Griffin conspired to and did commit robberies at the
Belvedere Inn in Lancaster County and Arooga’s Tavern in
Cumberland County by placing the individuals inside in fear for
their lives. [Appellant] again possessed a BB gun and Griffin had
a firearm during both of the robberies.
[The trial] court sentenced [Appellant] on August 21,
2015, in the case indexed at 448-14, to 10 to 20 years in prison
for robbery and a consecutive 10 to 20 years in prison for
conspiracy to commit robbery. [Appellant] received concurrent
sentences of 10 to 20 years in prison for the out-of-county
offenses, plus probation, for an aggregate prison sentence of 20
to 40 years.
PCRA Court Opinion, 8/9/17, at 1-2 (citing Trial Court Opinion, 11/30/15, at
1-2).
Appellant appealed his judgment of sentence to this Court, and we
affirmed on October 3, 2016. Commonwealth v. Garcia, 159 A.3d 32
(Pa.Super. 2016) (unpublished memorandum). He did not seek further
appellate review, thus rendering his judgment of sentence final on
November 3, 2016. On that same day, Appellant filed a pro se PCRA
petition. PCRA counsel was appointed, and, on April 5, 2017, Appellant filed
an amended PCRA petition contending that plea counsel was ineffective for
failing to present mitigating evidence at his sentencing hearing. After a
hearing, the court denied Appellant’s PCRA petition. Appellant filed a timely
notice of appeal to this Court, and complied with the PCRA court’s order to
file a Rule 1925(b) concise statement of errors complained of on appeal.
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The court authored its Rule 1925(a) opinion, and this matter is ready for our
review.
Appellant raises a single question for our consideration: “Did the
[PCRA court] err in not finding [plea] counsel ineffective for failing to call [a]
witness[] who would provide mitigation testimony regarding Appellant’s
childhood at a sentencing hearing following an open guilty plea where such
witness[] would have been known to [plea] counsel upon minimal
investigation and communication with [A]ppellant?” Appellant’s brief at 5.
When reviewing the denial of a PCRA petition, we are guided by the
following principles:
Our review is limited to the evidence of record and the factual
findings of the PCRA court. This Court will afford great deference
to the factual findings of the PCRA court and will not disturb
those findings unless they have no support in the record. When
a PCRA court’s ruling is supported by the evidence of record and
is free of legal error, we will not disturb its decision. However,
we review the court’s legal conclusions de novo.
Commonwealth v. Domek, 167 A.3d 761, 764 (Pa.Super. 2017) (internal
citations and quotation marks omitted).
When evaluating a claim that counsel was ineffective, “we begin with
the presumption [that] counsel is effective.” Id. (citation omitted). In
order to succeed on such a claim, Appellant must establish, by a
preponderance of the evidence:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
appellant suffered prejudice as a result of counsel’s error, with
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prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
Id.
An ineffectiveness claim will fail if the petitioner does not establish any
of these three prongs. Commonwealth v. Watley, 153 A.3d 1034, 1040
(Pa.Super. 2016). Specifically, Appellant challenges plea counsel’s failure to
call his sister, Monica Hicks, to testify on his behalf at sentencing. In order
to establish a claim of ineffectiveness premised upon counsel’s alleged
failure to call a witness, Appellant must demonstrate that: (1) the witness
existed; (2) the witness was available; (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 was so prejudicial to
petitioner to have denied him or her a fair trial. Commonwealth v. Miner,
44 A.3d 684, 687 (Pa.Super. 2012).
At a hearing before the PCRA court, Appellant presented the testimony
of Ms. Hicks. Ms. Hicks testified that she learned of Appellant’s criminal
conviction on the day he was sentenced. She had not been approached to
testify on his behalf, but stated, that she was willing to do so if counsel had
requested it. Further, Ms. Hicks suggested that, had she testified, she would
have discussed Appellant’s troubled upbringing, including abuse he suffered
at the hands of their grandmother, and her inability to properly care for him
during a year-long period wherein Appellant had lived with Ms. Hicks while
she was in her early twenties and Appellant was a twelve-year-old. Ms.
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Hicks stated that Appellant’s difficult upbringing played a major role in the
legal trouble he faced later in life.
The PCRA court found that Appellant did not establish any of the
prongs necessary to prove plea counsel’s ineffectiveness. As is pertinent to
our disposition herein, the court determined that Appellant had not
established that Appellant was prejudiced by plea counsel’s purported error.
After considering Ms. Hick’s testimony, the court noted that it “already had
the benefit of a [presentence investigation] report that included information
about [Appellant’s] childhood.” PCRA Court Opinion, 8/9/17, at 6. The court
observed that plea counsel had detailed many aspects of Appellant’s
troubled youth during the sentencing hearing, and observed that it was
aware of this when it fashioned Appellant’s sentence. The court concluded
that “Ms. Hicks’ purported testimony would not have changed this court’s
sentencing determination.” Id. at 7.
In rebutting this finding, Appellant argues that Ms. Hicks “would have
put a human face to the Appellant’s background.” Appellant’s brief at 11.
He maintains that Ms. Hicks presented information not previously available
in Appellant’s presentence investigation report, and thus, the court erred in
claiming that it had considered Appellant’s upbringing. For example,
Appellant asserts that Ms. Hicks offered insight into the “abuse that
[Appellant] suffered at the hands of his grandmother, who took him in
following his abandonment,” and “that as a twenty-four year-old, Ms. Hicks
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took a twelve-year-old [A]ppellant into her home, but could not afford to
care for him.” Appellant’s brief at 11-12. Finally, Appellant contends that
the PCRA court “failed to give weight to the basic human understanding that
receiving information from a person, as opposed to the cold, hard
[presentence investigation report] could have swayed the court’s
understanding of the depth of the extent of the hardships the Appellant
endured.” Id. at 12. We disagree.
During the sentencing hearing, plea counsel noted:
Now, I think when you look at the PSI, Your Honor, there are
several mitigating factors supporting my tendency towards
leniency on this, Your Honor. First and foremost, I think it’s
crystal clear from the PSI my client had a terrible childhood.
Abandoned by both parents; mother was a drug addict who did
not raise him, was not present in his life. Father was in prison
and he did not know him. He bounced around from school to
school in Philadelphia between grandparents, other family
members, really never had a home.
Sentencing Hearing, 8/21/15, at 6.
In fashioning its sentence, the sentencing court stated:
Being the trial judge, I had an opportunity of seeing you in
action, not only testifying, but also on the videotapes of these
four robberies. And all I can say is you are a real pro. You are a
real pro at robbing people. You might have had a tough
upbringing. It’s a consideration, but albeit a minor one because
at this point in your life prior to these robberies you have already
been in the state prison system.
Id. at 10. After recounting Appellant’s extensive adult and juvenile criminal
history, the court continued,
I have to tell you that when I was reading your file over this
week in preparation for today, I looked at the PSI. I considered
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the information there and the guidelines, the fact that what I
saw you do on the videotape, looking at the victims in this case,
and I had an idea of where this was going to go. I thought
about sending you something like 40 years in jail. That’s what I
was thinking about. Based upon your record, the violence and
the damage that’s occurred in this case, it didn’t bother me at all
thinking in those terms.
....
. . . I have considered your age, the information that you
presented about yourself today, and the information in the Pre-
Sentence Investigation, as well as the evidence of the
circumstances of the offense. The facts as to your personal
background and circumstance is not in dispute. And after
considering these factors, the Court finds there is an undue risk
that during the period of probation or partial confinement you
will commit another crime. A lesser sentence would depreciate
the seriousness of your crime and I therefore find that a
sentence of total confinement is proper.
Id. at 11-13. The court then sentenced Appellant to an aggravated-
range sentence as delineated above.
It is clear from the sentencing court’s above-statements that the court
was aware that Appellant suffered a difficult childhood. Nevertheless, the
court emphasized Appellant’s criminal history, the serious nature of his
crimes, and the likelihood that Appellant would reoffend in sentencing him to
a sentence in the aggravated range of the guidelines. The court expressly
stated that, in light of these aggravating factors, the mitigating effect of
Appellant’s childhood was a minor consideration. Indeed, after hearing Ms.
Hicks’ testimony, the PCRA court explicitly stated that such information
would not have changed the sentencing court’s determination.
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Likewise, we are not persuaded that Ms. Hicks’ testimony would have
overcome the substantial reasons the sentencing court set forth in rendering
Appellant’s judgment of sentence. The sentencing court was aware of
Appellant’s upbringing, and Ms. Hicks’ additional information did not
significantly add to the grim picture of Appellant’s childhood painted by the
presentence investigation report. As such, we find that Appellant has not
established that there is a reasonable probability that the outcome of his
sentencing proceeding would have been different but for plea counsel’s
alleged error. Domek, supra; Watley, supra. Accordingly, we affirm the
PCRA court’s denial of Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/18
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