Com. v. Melendez-Dejesus, L.

J-S07023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LUIS DANIEL MELENDEZ-DEJESUS
Appellant No. 1069 MDA 2015
Appeal from the PCRA Order June 11, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002554-2010
BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED MAY 04, 2016
Luis Daniel Melendez-Dejesus appeals the order entered on June 11,
2015, in the Court of Common Pleas of Lancaster County, that denied, after
a hearing, his first petition filed pursuant to the Pennsylvania Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. In this appeal, Melendez-
Dejesus claims trial counsel was ineffective for failing to: (1) request a
specific instruction concerning the crimen falsi convictions of Commonwealth
witness, Abraham Sanchez, (2) object to the delay in sentencing, which
violated Pa.R.Crim.P. 704(A), (3) object to the admission of irrelevant and
highly prejudicial “other crimes” evidence, and (4) argue at sentencing that
the mandatory minimum sentence of not less than five years’ incarceration
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*
Former Justice specially assigned to the Superior Court.
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could not be constitutionally imposed upon [Melendez-Dejesus]. Melendez-
Dejesus also claims the court’s imposition of a mandatory minimum
sentence is illegal. Based upon the following, we find merit solely in the final
sentencing claim raised herein, and therefore affirm in part, and reverse in
part and remand for resentencing.
As the parties are well acquainted with the procedural and factual
background of this case, which is fully set forth in the PCRA court’s opinion,
we do not restate it here. See PCRA Court Opinion, 6/11/2015, at 1–4.
Therefore, we proceed directly to the issues raised in this PCRA appeal.
The legal principles that guide our review are well settled:
“[A]s a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported
by the record and free of legal error.” Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297, 301 (Pa. 2011) (citation
omitted). A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record, such
determinations are binding on a reviewing court. Id., at 305
(citations omitted). …
To be entitled to relief on an ineffectiveness claim, a PCRA
petitioner must establish: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
action or failure to act; and (3) he suffered prejudice as a result
of counsel’s error, with prejudice measured by whether there is a
reasonable probability the result of the proceeding would have
been different. Commonwealth v. Chmiel, 612 Pa. 333, 30
A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of
counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527
A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have
rendered effective assistance. Commonwealth v. Ali, 608 Pa.
71, 10 A.3d 282, 291 (Pa. 2010). Additionally, counsel cannot
be deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa.
2006). Finally, because a PCRA petitioner must establish all the
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Pierce prongs to be entitled to relief, we are not required to
analyze the elements of an ineffectiveness claim in any specific
order; thus, if a claim fails under any required element, we may
dismiss the claim on that basis. Ali, at 291.
Commonwealth v. Treiber, 121 A.3d 435, 444–445 (Pa. 2015) (footnote
omitted).
Melendez-Dejesus first argues that trial counsel was ineffective when
he failed to object to and preserve for appellate review the trial court’s
failure to give a specific instruction concerning the crimen falsi convictions of
Commonwealth witness Abraham Sanchez.
At trial, Sanchez testified that while working as a confidential
informant he purchased cocaine from Melendez-Dejesus on two occasions
and that while employed at a garage, he witnessed Melendez-Dejesus sell
cocaine to his boss. See N.T., 5/10/2012, at 77, 80–89. Sanchez admitted
he had a criminal history, including crimen falsi convictions for false
identification to law enforcement, receiving stolen goods and two counts of
forgery. See id. at 78–79.
At trial, the court instructed the jury regarding witnesses’ credibility
and gave additional instructions regarding the testimony of a witness. See
N.T., 5/11/202, at 239–241. Melendez-Dejesus contends he was also
entitled to an instruction consistent with Pennsylvania Suggested Standard
Jury Instruction (Criminal) 4.08D based upon Sanchez’s crimen falsi
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convictions.1 With respect to the prejudice prong of the ineffectiveness test,
Melendez-Dejesus argues:
Sanchez was the key Commonwealth witness at trial. It was he
who directly implicated [Melendez-Dejesus]. His credibility was
of the utmost importance. If the jury had received an
appropriate instruction concerning the crimen falsi convictions
there appears to be a reasonable probability that the verdict
would have been different.
In rejecting this claim the [PCRA] Court stressed the evidence
presented by the Commonwealth and the other instructions
given by the Court. This reasoning cannot justify counsel’s
failure. This was a search warrant. While there may have been
sufficient evidence to justify an inference of an intent to deliver it
was the testimony of Sanchez which was the only direct
evidence that [Melendez-Dejesus] sold drugs.
Brief of Melendez-Dejesus at 14–15.
The PCRA court rejected Melendez-Dejesus’s argument, stating, in
part:
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1
The Pennsylvania Suggested Standard Jury Instruction at issue states:
4.08D - IMPEACHMENT--PRIOR CONVICTION (WITNESS ONLY)
1. You have heard evidence that one of the witnesses, [name of
witness], has been convicted of the crime of [crime].
2. The only purpose for which you may consider this evidence of
prior conviction is in deciding whether or not to believe all or
part of [name of witness]'s testimony. In doing so, you may
consider the type of crime committed, how long ago it was
committed, and how it may affect the likelihood that [name of
witness] has testified truthfully in this case.
Pa.S.S.J.I. (Crim) 4.08D.
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It is axiomatic that “[a] faulty jury charge will require the
grant of a new trial only where the charge permitted a finding of
guilt without requiring the Commonwealth to establish the
critical elements of the crimes charged beyond a reasonable
doubt.” Commonwealth v. Hansley, 24 A.3d 410, 420 (Pa.
Super. 2011) (quoting Commonwealth v. Wayne, 553 Pa.
614, 632-33, 720 A.2d 456, 465 (1998)). Further,
[w]hen reviewing jury instructions for error, the charge
must be read as a whole to determine whether it was fair
or prejudicial. The trial court has broad discretion in
phrasing its instructions, and may choose its own wording
so long as the law is clearly, adequately, and accurately
presented to the jury for its consideration.
Commonwealth v. Sepulveda, 618 Pa. 262, 317, 55 A.3d
1108, 1141 (2012). The Pennsylvania Supreme Court has
determined, moreover, that additional jury instructions are not
necessary, even if they would be helpful, as long as the jury
instructions viewed as a whole are fair, accurate, and clearly and
adequately express the law. See Commonwealth v. Blount,
538 Pa. 156, 174-75, 647 A.2d 199, 209 (1994) (trial counsel
not ineffective when supplemental jury instructions were not
requested, even though the defendant believed that additional
explanation would have been beneficial to his case).
In reviewing the instructions given in this case, it is clear
that they adequately, accurately and clearly presented the law to
the jury. Moreover, they did not permit a finding of guilt without
requiring the Commonwealth to establish the critical elements of
the crime charged beyond a reasonable doubt. See Hansley,
supra. Despite Sanchez’s testimony regarding the two probable
cause buys, [Melendez-Dejesus] was not charged with these two
deliveries, but rather [Melendez-Dejesus] was charged with one
count of possession with intent to deliver. The Commonwealth
established all of the elements of this crime beyond a reasonable
doubt.
Section 780-113(a)(30) of The Controlled Substance,
Drug, Device and Cosmetic Act prohibits the following acts:
“[T]he manufacture, delivery or possession with intent to
manufacture or deliver, a controlled substance by a person not
registered under this act. …” 35 [P.S.] § 780-113(a)(3). The
Commonwealth establishes this offense of possession with intent
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to deliver when it proves beyond a reasonable doubt that the
defendant possessed a controlled substance with intent to
deliver it. See Commonwealth v. Little, 879 A.2d 293, 297
(Pa. Super. 2005) (citing Commonwealth v. Kirkland, 831
A.2d 607, 61 (Pa. Super. 2003). …
In the instant case, during the execution of a search
warrant, police officers discovered 12 grams of cocaine in
[Melendez-Dejesus’s] bedroom. This cocaine was packaged in
two different ways: one Ziploc bag that contained 7.3 grams of
cocaine; and a plastic bag that contained nine smaller, knotted
plastic baggies, that each contained cocaine, amounting to a
total of 4.7 grams. This cocaine was found in the two front
pockets of a 4XL sweatshirt which was found in a bedroom closet
containing only men’s clothing.
The police also recovered from the bedroom [Melendez-
Dejesus’s] photo identification, and a Sentry safe key. Despite
being unemployed, cash in the amount of $4,225.00, folded into
$100 increments, was found in the Sentry safe in [Melendez-
Dejesus’s] bedroom. Detective Ondeck testified that, based on
his training and experience as an undercover officer with the
Lancaster County Drug Task Force, individuals selling controlled
substances often keep their money in $100 increments.
Noticeably absent from the residence was any drug
paraphernalia for personal use.
Detective Jeremy Schroeder testified for the
Commonwealth as a drug expert. Based on all of the evidence
and testimony, it was Detective Schroeder’s expert opinion that
[Melendez-Dejesus’s] possession of the cocaine was consistent
with possession with intent to deliver rather than a mere
possession for personal use. Thus, all of the evidence, along with
the expert testimony of Detective Schroeder, established beyond
a reasonable doubt that [Melendez-Dejesus] possessed the
cocaine with the intent to deliver.
Even were there no reasonable strategic basis for failing to
seek a supplemental jury instruction regarding the crimen falsi
convictions of Sanchez, [Melendez-Dejesus] still fails to show
resulting prejudice. He has not established that but for counsel’s
failure to request the instruction, the outcome of the proceedings
would have been different. See Commonwealth v. Douglas,
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558 Pa. 412, 434, 737 A.2d 1188, 1200 (1999). [Melendez-
Dejesus], therefore, is not entitled to relief on this allegation.
PCRA Court Opinion, 6/11/2015, at 10–13 (record citations omitted).
We agree with the sound reasoning of the PCRA judge. Based on our
review, we conclude Melendez-Dejesus has failed to establish the prejudice
prong of his claim that counsel was ineffective for failing to request a jury
instruction regarding the crimen falsi convictions of Sanchez. Accordingly,
we adopt the trial court’s discussion as dispositive of Melendez-Dejesus’s
first claim of trial counsel ineffectiveness.
In his second claim, Melendez-Dejesus contends trial counsel was
ineffective for failing to object to the delay in sentencing of
Melendez-Dejesus which violated Pa.R.Crim.P. 704. That rule states, in
pertinent part:
(A) Time for Sentencing.
(1) Except as provided by Rule 702(B), sentence in a court
case shall ordinarily be imposed within 90 days of
conviction or the entry of a plea of guilty or nolo
contendere.
(2) When the date for sentencing in a court case must be
delayed, for good cause shown, beyond the time limits
set forth in this rule, the judge shall include in the record
the specific time period for the extension.
Pa.R.Crim.P. 704(A)(1)-(2).
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Here, Melendez-Dejesus was sentenced 90 days after the expiration of
the 90-day period provided in Rule 704(A)(1). See PCRA Court Opinion,
6/11/2015, at 15 n.9.
In Commonwealth v. Anders, 725 A.2d 170, 173 (Pa. 1999), the
Pennsylvania Supreme Court held that “a defendant who is sentenced in
violation of Rule 1405 [now Pa.R.Crim.P. 704] is entitled to discharge only
where the defendant can demonstrate that the delay in sentencing
prejudiced him or her.” The Anders Court also set forth factors that the
trial court should consider in determining whether discharge is appropriate,
including:
(1) the length of the delay falling outside of Rule [704(A)(1)’s]
[9]0-day-and-good-cause provisions, (2) the reason for the
improper delay, (3) the defendant’s timely or untimely assertion
of his rights, and (4) any resulting prejudice to the interests
protected by his speedy trial and due process rights. Prejudice
should not be presumed by the mere fact of an untimely
sentence. Our approach has always been to determine whether
there has in fact been prejudice, rather than to presume that
prejudice exists. The court should examine the totality of the
circumstances, as no one factor is necessary, dispositive, or of
sufficient importance to prove a violation.
Id. (citations and internal quotation marks omitted) (emphasis added).
The PCRA court found trial counsel’s testimony at the PCRA hearing
“confirmed that the delay in sentencing was due, in part, to (1) the difficulty
locating [Melendez-Dejesus] within the SCI system due to the fact that he
was listed under the name ‘Danny’ Melendez-Dejesus, as opposed to Luis,
and (2) his inadvertent transfers within the SCI system.” PCRA Court
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Opinion, 6/11/2015, at 17. The PCRA court further opined that Melendez-
Dejesus had suffered no actual prejudice:
[Melendez-Dejesus] clearly suffered no actual prejudice in this
case as he received credit for the time he was incarcerated, and
did not spend more time incarcerated than if he had been
sentenced within 90 days of conviction. See Commonwealth
v. Still, 783 A.2d 829 (Pa. Super. 2001) (where defendant
received credit for time served and failed to show prejudice,
eight month delay in sentencing did not require dismissal of
charges); Commonwealth v. Adams, 760 A.2d 33 (Pa. Super.
2000) (prejudice claim rejected for defendant in jail for nearly a
year without being sentenced, where he received credit for time
in jail and did not spend more time incarcerated received credit
for time in jail and did not spend more time incarcerated than he
would have had he been sentenced earlier). See also
[Commonwealth v.] Diaz, [51 A.3d 884, 887 (Pa. Super.
2012)] (delay of 278 days between conviction and sentence,
although significant, was not result of intentional or inexcusable
conduct on the part of the trial court or Commonwealth, and was
not without good cause, so as to warrant discharge);
Commonwealth v. McLean, 869 A.2d 537, 540 (Pa. Super.
2005) (delay of seven months from entry of verdict to
sentencing did not prejudice defendant); Commonwealth v.
Dupre, 866 A.2d 1089 (Pa. Super. 2005) (defendant not entitled
to discharge, despite fact that she was not sentenced within 90
days of conviction, where she failed to allege prejudice from the
delay).
Id. at 17–18.
Our review finds the PCRA court has properly analyzed the facts of this
case in light of Rule 704(A) and relevant case law. Accordingly, because
Melendez-Dejesus suffered no actual prejudice, his ineffectiveness claim
presents no basis upon which to grant relief.
In his third claim, Melendez-Dejesus argues trial counsel was
ineffective in failing to object to irrelevant and highly prejudicial “other
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crimes” evidence. See Pa.R.E. 404(b)(1).2 Specifically, Melendez-Dejesus
points to the following exchange that occurred during direct examination of
Commonwealth witness, Abraham Sanchez, during which Sanchez referred
to prior criminal activity by Melendez-Dejesus with no objection by trial
counsel:
Q: And what can you tell us about Danny?
A: I met Danny when I worked at a garage on Old Dorwart
Street here in the City of Lancaster. My boss at the garage used
to buy cocaine off of him, and that’s how I met Danny.
N.T., 5/10/2012, at 80.
The PCRA court found that counsel’s explanation for his failure to
object — “the bell had already been rung” and he “didn’t feel like it was
going to gain [him] anything other than to highlight bad testimony” — was a
tactical decision on the part of trial counsel that had a “reasonable, strategic
basis.” PCRA Court Opinion, 6/11/2015, at 19–20, citing N.T., 11/14/2014,
at 13.3 The PCRA court concluded Melendez-Dejesus had failed to prove the
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2
Pennsylvania Rule of Evidence 404(b)(1) provides: “Evidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with
the character.”
3
At the PCRA hearing, trial counsel testified explained why he did not object
to Sanchez’s testimony, as follows:
A. I would say that I didn’t – I mean, the bell had already been
rung. I didn’t feel like it was going to gain me anything other
than possibly to highlight bad testimony.
(Footnote Continued Next Page)
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second prong of the ineffectiveness test, namely, that counsel’s actions
lacked a reasonable basis. Id. at 20.
In reviewing this claim, we are guided by the following principles:
[A] review of matters involving trial strategy is deferential. Trial
counsel will be deemed to have acted reasonably if the course
chosen by trial counsel had some reasonable basis designed to
effectuate his client's interests. Moreover, a claim of
ineffectiveness will not succeed by comparing, in hindsight, the
trial strategy trial counsel actually employed with the
alternatives foregone. Finally, [a]lthough we do not disregard
completely the reasonableness of other alternatives available to
counsel, the balance tips in favor of a finding of effective
assistance as soon as it is determined that trial counsel’s
decision had any reasonable basis.
Commonwealth v. Miller, 987 A.2d 638, 653 (Pa. 2009) (citations and
quotation marks omitted). Furthermore,
[c]ounsel are not constitutionally required to forward any and all
possible objections at trial, and the decision of when to interrupt
oftentimes is a function of overall defense strategy being
brought to bear upon issues which arise unexpectedly at trial
and require split-second decision-making by counsel. Under
some circumstances, trial counsel may forego objecting to an
objectionable remark or seeking a cautionary instruction on a
particular point because[o]bjections sometimes highlight the
issue for the jury, and curative instructions always do.
Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (citations and
quotation marks omitted)).
_______________________
(Footnote Continued)
I see what you’re getting at. I mean, and it was damaging, I
just didn’t know that our interests were going to be served by
drawing further attention to it.
N.T., 11/14/2014, at 13.
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We find no error in the PCRA court’s decision to credit trial counsel’s
explanation. Trial counsel’s decision not to highlight Sanchez’s testimony by
objecting and requesting a cautionary instruction constituted a
reasonable trial strategy. See Koehler, supra.
Furthermore, we find the PCRA court’s decision to reject this
ineffectiveness claim is correct because Melendez-Dejesus cannot
demonstrate any resulting prejudice from counsel’s decision. Melendez-
Dejesus claims he suffered prejudice because by failing to object “counsel
effectively waived any right [Melendez-Dejesus] had to the presumption of
innocence.” Melendez-Dejesus’s Brief at 19. We disagree. The
Commonwealth presented ample evidence that supports the jury’s verdict
finding Melendez-Dejesus guilty of PWID.
At trial, Sanchez testified that he made two controlled buys of cocaine
from Melendez-Dejesus at Melendez-Dejesus’s residence. N.T., 5/10/2012,
at 81–89. In addition, Detective Peter Ondeck testified regarding the
controlled buys he set up with Sanchez in this case, his method to ascertain
Melendez-Dejesus’s residence, and his surveillance of the residence
preliminary to his application for a search warrant, as well as the cocaine
and money recovered upon execution of the search warrant. Id. at 125–
165. Detective Jason Scott also testified regarding the cocaine recovered
during the execution of the search warrant. Id. at 108–116. In light of this
evidence, trial counsel’s failure to object cannot be said to have affected the
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outcome of the trial. Accordingly, Melendez-Dejesus’s claim that counsel
was ineffective in failing to object to Sanchez’s testimony regarding
Melendez-Dejesus’s prior criminal activity warrants no relief.
In his fourth issue, Melendez-Dejesus contends trial counsel was
ineffective in failing to litigate and preserve for appellate review the issue
that his mandatory minimum sentence of five years’ incarceration could not
be constitutionally imposed upon him. In his fifth claim, Melendez-Dejesus
contends the imposition of a five-year mandatory minimum sentence was
illegal and must be vacated. In making these arguments, Melendez-Dejesus
points to the United States Supreme Court decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013) . Because we find merit in Melendez-
Dejesus’s fifth issue, we need not address the ineffective claim raised in his
fourth issue.
Here, on November 9, 2012, Melendez-Dejesus received a mandatory
sentence of five to 10 years’ incarceration plus a $30,000.00 fine, pursuant
to 18 Pa.C.S. § 7508 (“Drug trafficking sentencing and penalties.”). No
post-sentence motions were filed. Melendez-Dejesus filed a timely appeal
on December 7, 2012. This Court affirmed the judgment of sentence on
September 9, 2013. See Commonwealth v. Melendez-Dejesus, 87 A.3d
376 (Pa. Super. 2013) (unpublished memorandum). On April 1, 2014, the
Pennsylvania Supreme Court denied allowance of appeal. Commonwealth
v. Melendez-Dejesus, 89 A.3d 661 (Pa. 2014).
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While Melendez-Dejesus’s appeal was pending in this Court, the United
States Supreme Court decided Alleyne, supra, on June 17, 2013. In
Alleyne, the United States Supreme Court held that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, 133 S. Ct. at
2155. Applying this mandate, this Court, in Commonwealth v. Newman,
99 A.3d 86 (Pa. Super. 2014) (en banc), concluded that Alleyne rendered
the mandatory minimum sentencing provision at 42 Pa.C.S. § 9712.1
unconstitutional and found the unconstitutional provisions of section 9712.1
were not severable from the statute as a whole.4 The Newman Court also
instructed that Alleyne applies to any criminal case still pending on direct
appeal as of June 27, 2013, the date of the Alleyne decision. Newman, 99
A.3d at 90. In light of Alleyne and Newman, a panel of this Court, in
Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. 2014), appeal
denied, 121 A.3d 494 (Pa. 2015), addressed a direct appeal sentencing
challenge to section 7508 and held section 7508 to be facially
unconstitutional in its entirety. Cardwell, 105 A.3d at 754–755.
In this case, Melendez-Dejesus’s case was pending on direct review
when Alleyne was decided. Therefore, as recognized by the
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4
See also Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (holding
18 Pa.C.S. § 6317 is unconstitutional and non-severable).
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Commonwealth,5 Alleyne is applicable. See Newman, supra.
Furthermore, this Court has held, in the context of timely collateral review,
that Alleyne invalidated a mandatory minimum sentence when petitioner’s
judgment of sentence was pending on direct review at the time Alleyne was
decided. See Commonwealth v. Ruiz, ___ A.3d ___, [2015 Pa. Super.
275] (Pa. Super. 2015). Accordingly, based on the foregoing case law, we
conclude Melendez-Dejesus’s sentence is unconstitutional and must be
vacated.
In sum, the ineffectiveness claims presented in this appeal provide no
basis upon which to grant relief, and the order of the PCRA court is affirmed
as to those claims. We reverse only with respect to the PCRA’s denial of
relief on Melendez-Dejesus’s sentencing claim, vacate the judgment of
sentence, and remand for a new sentencing hearing.
Order affirmed in part, reversed in part. Judgment of sentence
vacated. Case remanded for resentencing. Jurisdiction relinquished.
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5
See Commonwealth Brief at 20–21.
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Bowes, J., joins in this decision.
Fitzgerald, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2016
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