Com. v. Pena, R.

J-S84004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROGELIO ZALDIVAR PENA :
:
Appellant : No. 772 MDA 2017
Appeal from the PCRA Order January 14, 2016
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000942-2010
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 21, 2018
Appellant, Rogelio Zaldivar Pena, appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed a petition seeking
to withdraw representation. We grant counsel’s petition to withdraw and
affirm the order of the PCRA court.
This Court previously summarized the facts of the case in Appellant’s
direct appeal, as follows:
On May 12, 2010, a stabbing occurred in a parking lot at
Aldi’s food store in Lebanon City, Lebanon County, Pennsylvania.
Prior to the stabbing, [Appellant] and the victim were arguing
inside Aldi. The[se] men left inside the store at approximately
the same time. There was an altercation in the parking lot.
[Appellant] and the victim were seen grappling with each other
in the Aldi parking lot before the victim was stabbed. The victim
was lying partially inside of [Appellant’s] van door, and the body
was on the ground. A man was standing over top of the victim.
A stream of blood was flowing from the victim’s chest.
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There were numerous witnesses that testified that after
the stabbing [Appellant] came back into the store, and he was
holding a bloody knife. There was testimony that [Appellant]
said it was self-defense when he came back into the store.
There was also testimony that [Appellant] stated that a person
tried to rob him. [Appellant] left the store again, and eventually
placed the knife on the ground outside. [Appellant] was taken
into custody at the scene that day.
Johanna Morales (hereinafter “Morales”) knew [Appellant]
and the victim. The victim was like a father figure to Morales.
[Appellant] and the victim knew each other. Morales had
borrowed money from [Appellant] more than one time.
[Appellant] would ask for his money back, and Morales would
feel threatened. Morales told the victim about the problems she
was having with [Appellant]. The night before the victim was
killed, [Appellant] came by Morales’ house. The next morning,
[Appellant] came back to Morales’ house. [Appellant] told the
victim that Morales owed him money, and the victim told
[Appellant] to leave her alone. Then, [Appellant] left.
[Appellant] called Morales later. Morales agreed to go to Aldi’s
to pay him. Prior to going to Aldi, Morales went to lunch with
the victim and her children. At lunch, Morales saw [Appellant].
When leaving lunch, [Appellant] gave Morales a note, which
stated he would fight for her and “I am not scared to die for
you.” After lunch, Morales, the victim, and her children all went
to Aldi’s, and they saw [Appellant] there. Morales paid for the
groceries of [Appellant] and for a friend of [Appellant’s], Jose
Ramos-Flores.
Commonwealth v. Pena, 100 A.3d 323, 1499 MDA 2013 (Pa. Super.
March 28, 2014) (unpublished memorandum at 2–3) (internal citations
omitted).
A jury convicted Appellant of third-degree murder, 18 Pa.C.S. § 2501,
and aggravated assault, 18 Pa.C.S. § 2702. On February 28, 2011, the trial
court sentenced Appellant to twenty to forty years in prison for homicide and
held that the aggravated-assault conviction merged for sentencing purposes.
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Appellant filed post-sentence motions, which the trial court denied.
Appellant filed a timely notice of appeal, 1668 MDA 2011,1 that this Court
dismissed on February 8, 2012, for failure to file a brief. Pena, 1499 MDA
2013, unpublished memorandum at 3.
On February 6, 2013, Appellant, pro se, filed a PCRA petition. The
PCRA court appointed counsel, who filed an amended petition on March 27,
2013. Following a hearing, the PCRA court reinstated Appellant’s direct
appeal rights nunc pro tunc on August 12, 2013. This Court affirmed the
judgment of sentence on March 28, 2014, Pena, 1499 MDA 2013, and our
Supreme Court denied Appellant’s petition for allowance of appeal on
November 14, 2014. Commonwealth v. Pena, 110 A.3d 997, 241 MAL
2014 (Pa. 2014).
Appellant, through counsel, filed a timely PCRA petition on July 16,
2015, which was treated as a first PCRA petition.2 The PCRA court held a
hearing on January 14, 2016. On January 15, 2016, the PCRA court denied
PCRA relief. Thereafter, despite Appellant’s alleged request, counsel failed
____________________________________________
1 The Commonwealth erroneously reports that Appellant failed to file a
direct appeal. Commonwealth’s Brief at 10.
2 Because Appellant’s first petition resulted in the restoration of his direct
appeal rights, the July 16, 2015 petition was akin to a first PCRA petition.
See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013)
(“[W]hen a PCRA petitioner’s direct appeal rights are reinstated nunc pro
tunc in his first PCRA petition, a subsequent PCRA petition will be considered
a first PCRA petition for timeliness purposes.”).
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to file an appeal from the denial of PCRA relief. Appellant then filed a motion
to reinstate his appellate rights on May 4, 2016, which the PCRA court
treated as a PCRA petition. The PCRA court appointed counsel on May 13,
2016, and directed counsel to file an amended PCRA petition. Counsel filed
an amended petition on November 1, 2016, and the PCRA court scheduled a
hearing for January 5, 2017, which was rescheduled to April 20, 2017.
Following the hearing, the PCRA court reinstated Appellant’s appellate rights
nunc pro tunc on April 24, 2017. Order, 4/24/17. This appeal followed on
May 1, 2017.
On May 12, 2017, Appellant filed a court-ordered statement pursuant
to Pa.R.A.P. 1925(b). The PCRA court, rather than file a Rule 1925(a)
opinion, noted on May 18, 2017, “[A]ll errors are addressed in our Opinion
dated January 14, 2016, and we adhere to that analysis.” Order, 5/18/17.3
PCRA counsel filed a petition to withdraw as counsel and a
Turner/Finley4 brief in this Court on September 26, 2017. On
September 29, 2017, this Court ordered PCRA counsel to send a new letter
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3 The January 14, 2016 order is not an opinion; rather, it is an attachment
of five pages of notes of testimony from the January 14, 2016 PCRA hearing.
However, the page numbers of the attached pages do not comport with the
pages of the notes of testimony. The January 14, 2016 order attaches
pages 55 through 59, and the corresponding pages of the notes of testimony
are pages 53 through 57. N.T., 1/14/16, at 53–57.
4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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to Appellant clarifying that Appellant has the immediate right to proceed pro
se or through privately retained counsel, Commonwealth v. Muzzy, 141
A.3d 509 (Pa. Super. 2016), because counsel’s prior letter indicated that
Appellant could so proceed “if” this Court granted the request to withdraw.
Order, 9/29/17. Counsel complied with our order.
Prior to addressing Appellant’s claims on appeal, we must address
counsel’s petition to withdraw as counsel. When counsel seeks to withdraw
representation in a collateral appeal, the following conditions must be met:
Counsel petitioning to withdraw from PCRA representation
must proceed ... under [Turner and Finley and] ... must review
the case zealously. Turner/Finley counsel must then submit a
“no-merit” letter to the trial court, or brief on appeal to this
Court, detailing the nature and extent of counsel’s diligent
review of the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
* * *
[W]here counsel submits a petition and no-merit letter that
... satisfy the technical demands of Turner/Finley, the court—
trial court or this Court—must then conduct its own review of the
merits of the case. If the court agrees with counsel that the
claims are without merit, the court will permit counsel to
withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted).
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Here, counsel described the extent of his review, evaluated the issues,
and concluded that the appeal is frivolous. Counsel has also listed issues
relevant to this appeal and explained why, in his opinion, the issues are
without merit. In addition, counsel has included the revised letter sent to
Appellant containing a copy of his motion to withdraw and a statement
advising Appellant of his right to proceed pro se or through privately-
retained counsel. Thus, we conclude that counsel has substantially complied
with the requirements necessary to withdraw as counsel. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with the requirements to withdraw as
counsel will satisfy the Turner/Finley criteria). We now independently
review Appellant’s claims to ascertain whether they entitle him to relief.5
Appellant raises the following issues in the Turner/Finley brief:
A. Whether the PCRA Court erred in denying Appellant’s PCRA
Petition claiming ineffective assistance of counsel for failing
to present the entirety of a recorded prison phone call
involving the Appellant’s statements?
B. Whether the PCRA Court erred in denying Appellant’s PCRA
Petition claiming ineffective assistance of counsel for failing
to present the entire Aldi surveillance video to establish
the Appellant acted in self-defense?
C. Whether the PCRA Court erred in denying Appellant’s PCRA
Petition claiming ineffective assistance of counsel when the
Appellant informed counsel that the letter authored by the
____________________________________________
5 We note that Appellant has not filed either a pro se brief or retained
alternate counsel for this appeal.
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Appellant in Spanish was not properly translated by a
court-approved interpreter?
Turner/Finley Brief at 5.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185
(Pa. 2016). The PCRA court’s findings will not be disturbed unless there is
no support for them in the certified record. Commonwealth v. Lippert, 85
A.3d 1095, 1100 (Pa. Super. 2014).
All of Appellant’s issues raised in this appeal assert the ineffective
assistance of trial counsel. To plead and prove the ineffective assistance of
counsel (“IAC”), a petitioner must establish: (1) that the underlying issue
has arguable merit; (2) counsel’s actions lacked an objective reasonable
basis; and (3) actual prejudice resulted from counsel’s act or failure to act.
Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en
banc). A claim of ineffectiveness will be denied if the petitioner’s evidence
fails to meet any one of these prongs. Commonwealth v. Martin, 5 A.3d
177, 183 (Pa. 2010). Counsel is presumed to have rendered effective
assistance of counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410
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(Pa. 2015). We have explained that trial counsel cannot be deemed
ineffective for failing to pursue a meritless claim. Commonwealth v.
Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc). “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.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016)
(citing Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)).
Appellant’s first issue alleges trial counsel’s ineffectiveness in failing to
present at trial the entirety of a recorded prison telephone call.
Turner/Finley Brief at 15.6 Appellant testified at the PCRA hearing that he
wanted the entire telephone call played for the jury so that the jurors could
recognize Appellant’s voice. N.T., 1/14/16, at 41. Trial counsel testified
that the telephone call in question was redacted to eliminate references to
Appellant’s prison account and his expressed need of adding additional funds
to the account. Id. at 17.
In rejecting this issue, the PCRA court noted that at trial, trial counsel
provided Appellant with “ample opportunity to explain the phone call in its
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6 Not only does the Turner/Finley brief switch between labeling the issues
A–C in the statement of the questions and 1–3 in the body of the brief, the
order of the issues presented in the two portions of the brief is altered. We
address the issues consistently with their presentation in the statement of
the questions presented.
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totality.” Order, 1/15/16, at 56; N.T., 1/14/16, at 55. Further, the PCRA
court determined that counsel’s trial strategy was “sound and legitimate.”
Id. We concur. Counsel’s explanation for redacting a portion of the
telephone call was reasonable trial strategy aimed at protecting Appellant
from potential prejudice by jurors focusing on the fact that Appellant was in
prison. “With regard to ‘reasonable basis,’ the PCRA court ‘does not
question whether there were other more logical courses of action which
counsel could have pursued; rather, the court must examine whether
counsel’s decisions had any reasonable basis.’” Commonwealth v. Mason,
130 A.3d 601, 618 (Pa. 2015). Here, Appellant failed to show that trial
counsel had no reasonable basis for his action, and thus, we reject this IAC
claim. See Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 783 (Pa.
Super. 2015) (The appellant’s failure to support his contention that his trial
counsel had no reasonable basis for inaction results in rejection of the IAC
claim).
Appellant next asserts the PCRA court erred in denying Appellant’s IAC
claim for failing to present the entire Aldi surveillance video to establish that
Appellant acted in self-defense. Turner/Finley Brief at 14–15. Appellant
testified at the PCRA hearing that there was video from inside the Aldi store
that showed the victim threatening Appellant and counsel was ineffective for
not showing the video to the jury. N.T., 1/14/16, at 35.
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Defense counsel testified at the PCRA hearing that the entire defense
“was to claim self-defense in the stabbing of [the victim].” N.T., 1/14/16, at
20. When asked about failing to present video from inside Aldi’s to the jury,
defense counsel extensively described the existing video and its presentation
to the jury, making clear that the interaction described by Appellant was
outside of the camera angle.
[Trial Counsel:] The interaction between [Appellant] and
[the victim] did not appear on the video. The Aldi video
actually had four different camera locations. The top left was
the entryway that showed the entrance from the exterior of the
store, the lobby and then the entrance into the main store itself.
Basically the glass box that was the entrance. The bottom left
view, I believe it was bottom left, was actually the—a
refrigerated cabinet or refrigerated or a cooler at the back.
The interaction that [Appellant] had spoken of actually had
taken place down further. And I believe per his testimony, as
well as [the witness’s] testimony, it took place in front of the ice
cream cooler which was a different—which was a different type
of cabinet refrigerated area.
The other two views in the video and I may be reversing
where they are, but it’s four separate screens that you could
look at each individually. One of which showed the rear loading
door which was [of] little to no value whatsoever to anything.
And the last one was the cash wrap area where on video you
could see [Appellant] organizing his groceries and going through
the checkout, organizing his groceries and then being followed
from the store by [the victim].
[PCRA Counsel: ] And given those four particular camera
angles that depict or depicted the inside of the Aldi’s, what was
your rationale in not displaying to the jury essentially that entire
video from the moment that [Appellant] and [the witness]
arrive[]—we add to the mix that the victim in the case—to the
point where both of them exit the store?
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[Trial Counsel:] Actually the jury had the opportunity to
view all of that. They viewed the entry of [Appellant] into the
store. They viewed the entry of then [a witness] and [the
victim] whenever they arrived separately. I don’t believe that
we were able to identify—there were actually two or three
witnesses who had—who we had spoken to—had a private
investigator speak with—who had indicated they were at the Aldi
at the time, but we could not identify positively those individuals
entering the store.
The jury also had the opportunity and saw the entirety of
the waiting in line, the checkout, [the witness] going and paying,
[Appellant] then organizing his groceries and then exiting the
store.
The other two views would frankly have been just the
same as watching a blank screen. There was no evidentiary
value one way or the other to those other screens.
[PCRA Counsel:] To your knowledge, did the video at any
point—regardless of the fact that the jury had the opportunity to
look at this—did any of the videos based upon your preparation
depict the victim besides—obviously did not depict this
interaction where words were allegedly exchanged between the
victim and [Appellant]. Were there any—was there any video
available that would depict the victim’s demeanor, physical
demeanor prior to leaving the store or at the time that he was
leaving the store?
[Trial Counsel:] Absolutely. And I’m sure you’ve reviewed the
transcript and got to see in my closing that I placed great weight
and great argument and—onto the you’ve seen the video.
You’ve seen [the victim] follow [Appellant] out the door. The
argument was [Appellant], never turns around, never pays him
any mind. Never engages in any interaction with him. And [the
victim] followed [Appellant] out the door 10 seconds later after
standing off to the side waiting and watching. And I don’t know
that I use the argument that he was stalking him, but this was
clearly a man who was waiting for [Appellant] to leave the store.
And then you see him follow him out.
N.T., 1/14/16, at 6–9 (emphases added). Thus, trial counsel testified that
the jury was able to view the video inside the store in its entirety.
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The PCRA court, in rejecting this claim, noted that the video inside the
store was played in its entirety. The PCRA court stated:
I watched it [the video] like the jury did. My recollection is
the entire interaction was played. You might remember
something different in your recollection of the interaction that
perhaps you perceived the video didn’t show. But I do not recall
nor does the record recall anything where that video was edited,
cut out. The video was played in its entirety. This jurist
recalls seeing you along with the others at the checkout. Seeing
him follow you out and then it obviously cuts out because there
were no cameras outside of Aldi’s.
Order, 1/15/16, at 57; N.T., 1/14/16, at 56 (emphases added). As counsel
will not be deemed ineffective for failing to assert a baseless claim,
Commonwealth v. Sheppard, 648 A.2d 563 (Pa. Super. 1994), we
conclude the PCRA court did not err in denying relief on this basis.
Lastly, Appellant contends that trial counsel was ineffective for failing
to correct a translation by a court-approved interpreter of a letter that
Appellant wrote in Spanish, which was presented to the jury.
Turner/Finley Brief at 17–18. This claim is based upon Appellant’s
testimony at the PCRA hearing wherein he asserted that the interpreter
mistakenly used the word “he” twice, rather than using the word “you” in
place of the second “he.” N.T., 1/14/16, at 37.
We note that Appellant never clearly identified where in the letter the
misinterpretation occurred. N.T., 1/14/16, at 37. Despite that ambiguity,
the PCRA court was able to identify the portion of the letter, and it noted
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that any misstatement was corrected prior to presentation. The court
stated:
Unfortunately for [Appellant], what the jury heard, which was
read to him[,] was exactly what he contended because that’s
what the record says. And I quote on page 122 starting at line
16 [of the trial testimony, N.T., 1/3–6/11] “that’s why I told you
in the store that he found what you found for him a fight with
me.”
* * *
The [c]ourt finds that that was corrected and inconsistent with
what you’re now saying and was the facts that the jury viewed.
What you’re now concocting—I don’t know if it’s concocting or
misinterpreting, is your belief that they heard he because the
translation letter might have said he. When in fact the evidence
that the jury viewed was consistent in exactly with what you are
now asserting should have been heard. So that can’t be a
cognizable PCRA [claim] on behalf of [trial counsel]. It was
corrected prior to reading. So that PCRA claim is unfounded.
Order, 1/14/16, at 54; N.T., 1/14/16, at 54–55 (emphases added). In light
of the fact that any misstatement was corrected, this claim lacks arguable
merit. Stewart, 84 A.3d at 706.
We have concluded that Appellant’s issues either lack arguable merit
or that trial counsel exhibited reasonable strategy at trial. Our independent
review of the record in light of the PCRA petition, as well as the contents of
counsel’s motion to withdraw and Turner/Finley brief, compels our
agreement that the PCRA petition is meritless, and we permit counsel to
withdraw.
Petition to withdraw granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/21/2018
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