Com. v. Gago, E.

J-S62007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWIN GAGO :
:
Appellant : No. 1230 EDA 2017
Appeal from the PCRA Order March 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013691-2010
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 04, 2018
Edwin Gago appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, denying his petition for collateral relief filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 Upon review, we affirm,
based in part on the opinion authored by the Honorable Susan I. Schulman.
The trial court summarized the relevant facts as follows:
At trial, the Commonwealth presented the testimony of Edward
DeOleo Valdez. On September 21, 2010, Mr. DeOleo left the home
he occupied with his girlfriend, Maritza Rodriguez, at 3060 E.
Street, to go to the corner grocery [store] at E. and Clearfield
[Streets]. [DeOleo] had worked at that grocery [store] for the
previous year and a half. He had originally met Ms. Rodriguez, as
well as her previous boyfriend, the Appellant, Edwin Gago, as
customers at that store. [Gago] and Ms. Rodriguez have two (2)
children together.
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
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While walking to the store, Mr. DeOleo heard steps behind him,
turned, and saw a person behind him, wearing a black mask.2
Recognizing his body, face and eyes, Mr. DeOleo spoke [Gago’s]
nickname, ‘Mingo’, and in response, heard [Gago] say in a voice
which DeOleo recognized, ‘I told you I would get you in the street,
Cabron.’ Mr. DeOleo then turned, ran towards the grocery store,
and heard gunshots as he ran. Mr. DeOleo was struck in the back,
stomach and head as he ran towards and into the grocery store.
The owner of the grocery store, Eustacia Guzman, came to his
assistance, [and] called Ms. Rodriguez, who ran to the grocery
store. As he lay on the floor of the grocery store, Mr. DeOleo
repeatedly told Mr. Guzman and Ms. Rodriguez that ‘Mingo’ had
shot him.
Mr. DeOleo was taken to Temple University Hospital where he
underwent surgery on his pelvis, intestines and stomach. In
addition to the wounds in his abdomen, he also sustained wounds
in his shoulder and on his head. He was hospitalized for nine days
and had a recovery period in excess of three months. While at
Temple University Hospital, Mr. DeOleo was shown a photo array
and identified [Gago] as his assailant. He again identified [Gago]
as his assailant at trial.
[Gago] was, as of September 2010, under a Protection from Abuse
(“PFA”) order obtained by Ms. Rodriguez. Ms. Rodriguez testified
that she had sought the restraining order in June of 2010 because
[Gago] had harassed her both at home and at her place of
employment, a Hess station on City Line Avenue, by repeated
unwanted visits and phone calls in which he threatened to kill
himself if Ms. Rodriguez would not allow him to return to the home
that he had shared with Ms. Rodriguez and their two sons. Ms.
Rodriguez testified that she observed [Gago] driving past her
home displaying what she believed to be a gun. She testified that
she was scared of [Gago] because she believed that he was
violent, that she and [Gago] argued, and that [Gago] choked her
‘so many times.’
[Gago] sought to establish that Ms. Rodriguez sent him messages
through Facebook and left text messages on his phone seeking to
reconcile with him. Rodriguez denied that she had made the
Facebook postings or the phone calls. The Commonwealth
introduced testimony identifying the phone number used for these
text messages as belonging, at the time of the alleged text
messages, to Jorge Santoni, [Gago’s] brother, not Ms. Rodriguez.
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[Gago] presented alibi testimony through his cousin, Damien
Santoni, who contended that [Gago] was at his garage at 249
West Duncannon [Street] doing electrical work at the time he
allegedly had made the threatening drive-by on September 21,
2010[,] described by DeOleo[,] and that [Gago] had been present
at his garage at 4610 4th Street at the time Mr. Deoleo was shot.
Mr. Santoni’s testimony was supported by the testimony of his
son, Devon Moore, who testified that he had seen [Gago] at the
249 West Duncannon [Street] garage as well as at the 4610 [4]th
Street garage at those times.
[Gago] also presented the testimony of his niece, Yajaira Reyes,
who lives with his mother, to dispute the description of [the] July
of 2010 encounter provided by Ms. Rodriguez and Mr. DeOleo. In
contrast to the testimony of Mr. DeOleo and Ms. Rodriguez, Ms.
Reyes testified that the aggressor was Ms. Rodriguez who “spoke
in a bad tone” to [Gago] and said[,] “What is this cabron [sic]
doing here, this bastard, this son of a bitch, I’m going to put him
in jail.” Ms. Reyes testified that [Gago] said nothing during the
encounter.
_______________
2DeOleo testified to having several previous encounters with
Gago. One took place in July of 2010 at City Hall. DeOleo
was there with Rodriguez and her son Javier when they ran
into Gago who, according to DeOleo, came towards them
with a threatening and menacing face and told DeOleo that
“I’m going to get you in the street, Cabron.” Another
encounter took place on the morning of September 21,
2010. DeOleo stood in the doorway of his home, which he
shared with Rodriguez, with Javier and observed Gago drive
past in a truck and come to a stop in the road, and looked
at DeOleo in what he described as a threatening manner.
DeOleo went to the grocery store because he was scared
and observed Gago circle the block and return to park in
front of the home.
Trial Court Opinion, 12/18/17, at 2-4.
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On September 26, 2011, a jury convicted Gago of attempted murder in
the first degree,2 aggravated assault,3 possessing a firearm without a license,4
and possessing instruments of crime.5 On March 23, 2012, the court
sentenced Gago to an aggregate term of fifteen to thirty years of
incarceration.6 Gago filed a direct appeal and, on November 20, 2013, this
Court affirmed his judgment of sentence. Commonwealth v. Gago, No.
1942 EDA 2012 (Pa. Super. filed Nov. 20, 2013) (unpublished memorandum).
Gago subsequently filed a petition for allowance of appeal to the Pennsylvania
Supreme Court, which was denied. Commonwealth v. Gago, 94 A.3d 1007(Pa. 2014).
On May 18, 2015, Gago filed a counseled PCRA petition, and
subsequently amended it, challenging trial counsel’s effectiveness.
Specifically, Gago claimed: (1) trial counsel was ineffective for opening the
door to other crimes/bad acts evidence; (2) trial counsel was ineffective for
____________________________________________
2 18 Pa.C.S.A. § 901.
3 18 Pa.C.S.A. § 2702(a)(1).
4 18 Pa.C.S.A. § 6106(a)(1).
5 18 Pa.C.S.A. § 907(a).
6 The court sentenced Gago as follows: 15-30 years’ imprisonment for
attempted murder; 5-10 years’ concurrent imprisonment for aggravated
assault; 2-4 years’ concurrent imprisonment for possessing a firearm without
a license; and no further penalty imposed on possessing an instrument of
crime.
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failing to object to the attempted murder and aggravated assault instruction
given by the court; and (3) trial counsel was ineffective for failing to object to
inadmissible hearsay evidence. On March 17, 2017, the court dismissed
Gago’s petition. This appeal followed.
On appeal, Gago raises the following issues:
1. Did the PCRA court err by denying relief on a claim alleging that
trial counsel was ineffective for opening the door to other
crimes or bad acts evidence?
2. Did the PCRA court err by denying relief on a claim alleging that
[] trial counsel was ineffective for not objecting to defective
attempted murder and aggravated assault instructions?
3. Did the PCRA court err by denying relief on a claim alleging that
trial counsel was ineffective for not objecting to incriminating
inadmissible hearsay evidence?
Appellant’s Brief, at 3.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).
[C]ounsel is presumed to have provided effective representation
unless the PCRA petitioner pleads and proves that: (1) the
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his or her conduct; and (3) [the petitioner]
was prejudiced by counsel’s action or omission. To demonstrate
prejudice, an appellant must prove that a reasonable probability
of acquittal existed but for the action or omission of trial counsel.
A claim of ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA petitioner
must exhibit a concerted effort to develop his ineffectiveness claim
and may not rely on boilerplate allegations of ineffectiveness.
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Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (punctuation
marks and citations omitted).
In determining whether counsel’s action was reasonable, the court does
not consider “whether there were other more logical courses of action” counsel
could have pursued, but simply examines whether counsel’s decision had any
reasonable basis. Commonwealth v. Washington, 927 A.2d 586, 594 (Pa.
2007). Conversely, to merit relief, counsel’s action, given all the other
available alternatives, must be “so unreasonable that no competent lawyer
would have chosen it.” Commonwealth v. Miller, 431 A.2d 233, 234 (Pa.
1981).
A failure to satisfy any prong of the test for ineffectiveness requires
rejection of the claim. Washington, 927 A.2d at 594. “In the context of a
PCRA proceeding, [the defendant] must establish that the ineffective
assistance of counsel was of the type ‘which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.’” Id. (quoting 42
Pa.C.S.A. § 9543(a)(2)). The defendant must establish actual prejudice, or
demonstrate that the alleged act of ineffectiveness falls within a narrow range
of circumstances in which there is a presumption of prejudice.
Commonwealth v. Reed, 971 A.2d 1216, 1224-25 (Pa. 2009).
As the Pennsylvania Supreme Court emphasized, “[a] fair assessment
of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
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challenged conduct, and to evaluate the conduct from counsel’s perspective”
under the law in existence at the time of counsel’s act or omission.
Commonwealth v. Daniels, 963 A.2d 409, 429 (Pa. 2009) (quoting
Strickland v. Washington, 466 U.S. 668, 689 (1984)). “[A] defendant is
not entitled to relief simply because the strategy is unsuccessful.”
Commonwealth v. Tippens, 598 A.2d 553, 556 (Pa. Super. 1991) (en
banc); accord Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super.
1995).
Gago first claims that trial counsel was ineffective for “opening the door”
to other bad acts evidence. On direct appeal, this Court concluded that trial
counsel in fact had “opened the door” to this evidence and, thus, Pennsylvania
Rule of Evidence 404(b) did not bar its admission. See Commonwealth v.
Gago, No. 1942 EDA 2012 (Pa. Super. filed Nov. 20, 2013) (unpublished
memorandum). This testimony included evidence of 911 call logs from the
home Gago and Rodriguez shared as well as testimony by Rodriguez that Gago
was violent, that he was cheating on her, and that he was drinking and
smoking marijuana heavily. The issue before us is whether counsel is
ineffective for having done so. After our review of the parties’ briefs, the
record and the relevant law, we conclude that Judge Schulman has thoroughly
and properly addressed this issue in her opinion. See Trial Court Opinion,
12/20/17, at 7-13 (trial counsel’s effort to undercut Commonwealth’s
argument that victim was in fact jealous and violent party did have reasonable
basis designed to effectuate Gago’s best interest and fact that it was
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unsuccessful is immaterial; further, given compelling evidence against him,
Gago failed to establish prejudice).
Gago next claims that trial counsel was ineffective for not objecting to
defective attempted murder and aggravated assault instructions. Specifically,
Gago argues that word “allegedly” was not included in the jury instruction
prior to the word “shot” or “shooting.” He claims counsel’s failure to object or
request the court to modify or recharge the jury with the omitted language
prejudiced him by making it appear that the court agreed that Gago was the
shooter.
Our Supreme Court has stated:
A trial court has wide discretion in phrasing jury instructions.
When reviewing an allegation of an incorrect jury instruction, the
appellate court must view the entire charge to determine whether
the trial court clearly and accurately presented the concepts of the
legal issue to the jury and should not reverse, as a result of the
instruction, unless the trial court committed an abuse of its
discretion. We will not examine a phrase or sentence of an
instruction in a vacuum. Rather, when we evaluate a challenge to
a charge, we must consider how each part fits together to convey
a complete legal principle.
Commonwealth v. Ragan, 743 A.2d 390, 397-98 (Pa. 1999) (citations
omitted). Trial counsel will not be held ineffective for failure to object to an
erroneous jury instruction unless the petitioner can establish prejudice: i.e.,
if counsel had objected to the charge, there is a reasonable probability that
the result at trial would have been different. Commonwealth v. McGill, 832
A.2d 1014, 1023 (Pa. 2003).
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Pennsylvania Standard Jury Instruction § 12.901A.1 provides in
pertinent part:
First, that the defendant did a certain act, that is, [he] [she]
[describe act]; Second, that at the time of this alleged act, the
defendant had the specific intent to kill [name of victim], that is,
[he] [she] had a fully formed intent to kill and was conscious of
his or her own intention; and Third, that the act constituted a
substantial step toward the commission of the killing the
defendant intended to bring about.
Pennsylvania Suggested Standard Criminal Jury Instructions, § 12.901A.1.
Here, the court gave the following jury instruction for the charge of attempted
murder:
Number one, that Mr. Gago did a certain act; that is, that he shot
Mr. DeOleo three times in the back, the stomach, the head . . .
that when he shot Mr. DeOleo three times the defendant had
specific intent to kill and was conscious of his own intention . . .
the shooting constituted a significant step toward the commission
of a killing that the defendant intended to bring about.
N.T Trial, 9/26/11, at 69-72.
Because the trial court’s instruction closely tracked the language of the
Pennsylvania Suggested Standard Jury Instructions, we presume the
instruction is accurate. See Commonwealth v. Kerrigan, 920 A.2d 190,
198 (Pa. Super. 2007). The court included in the instruction that each element
of each offense must be established beyond a reasonable doubt, making clear
that it is the jury’s prerogative to convict. N.T. Trial, 9/26/11, at 69-71.
Further, the evidence at trial, including the video surveillance of the entire
shooting and the repeated statements by the victim that it was Gago who shot
him, was overwhelming. As such, Gago failed to establish that but for trial
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counsel not objecting, the jury would have reached a more favorable verdict.
Ragan, supra. Thus, we find no prejudice and, therefore, trial counsel cannot
be found ineffective. See Commonwealth v. Geathers, 847 A.2d 730, 737
(Pa. Super. 2004) (finding evidence against defendant too overwhelming to
conclude defendant was prejudiced by erroneous jury instruction).
Finally, Gago claims that trial counsel was ineffective for not objecting
to incriminating inadmissible hearsay evidence. Gago argues his counsel
should have objected to the alleged hearsay evidence presented by Assistant
District Attorney Kathryn Brown. ADA Brown testified to being present when
another prosecutor called the disputed phone number. Gago provided the
number and alleged it belonged to Rodriguez and that she had been calling
and texting him. Instead, a man answered, identifying himself as Jorge
Santoni, Gago’s brother, who stated he owned the phone for five years. Gago
argues that ADA Kathryn Brown’s testimony, as to hearing Jorge Santoni,
answer the phone and admit to owning the number for five years, was
inadmissible.
The term “hearsay” is “a statement made by someone other than the
declarant while testifying at trial and is offered into evidence to prove the truth
of the matter asserted,” which “is normally inadmissible at trial.”
Commonwealth v. Ali, 10 A.3d 282, 316 (Pa. 2010). However, “out-of-court
statements may be admissible . . . for some relevant purpose other than to
prove the truth of the matter asserted.” Id.; see also Commonwealth v.
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Puksar, 740 A.2d 219, 225 (Pa. 1999) (finding statements by witnesses who
overheard defendant and his brother arguing admissible because they were
offered to establish motive for killing, not to prove truth of matter asserted);
Commonwealth v. Brown, 648 A.2d 1177, 1183 (Pa. 1994) (finding
testimony from witness was offered to support Commonwealth’s position that
self-defense claim was sham, not offered as proof of matter asserted).
“When a witness testifies that someone said something to him and the purpose
is not to show that what was said was true but that the statement was made,
the testimony is not hearsay but instead a verbal act.” Commonwealth v.
Jones, 543 A.2d 548, 550 (Pa. Super. 1988) (citations omitted).
Here, ADA Brown’s testimony, that she was present when the prosecutor
dialed the disputed number and a man answered who identified himself as
Jorge Santoni and acknowledged that he owned the phone for five years, was
not admitted to prove the truth of the matter asserted. The truth of ADA
Brown’s testimony, whether Jorge Santoni was in fact the owner of the phone
for five years, is not at issue. Instead, the Commonwealth admitted the
testimony as a “verbal act,” offered to demonstrate that because someone
else answered the phone, Rodriguez did not possess the phone and Gago
falsified the evidence he had supplied. See id. Therefore, because the
evidence was admissible, counsel cannot be found ineffective for failing to
object.
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The PCRA court’s findings are supported by the record. We therefore,
affirm the PCRA court’s order denying relief. Abu-Jamal, supra. We direct
the parties to attach a copy of Judge Schulman’s opinion in the event of further
proceedings.
Order affirmed.
PJE Ford Elliott, joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/18
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Circulated 11/08/2018 03:06 PM
FILED
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY OEC 2 0 2017
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Office of Judicial Records
CRIMINAL TRIAL DIVISION Appeals/Post Trial
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0013691-2010
VS.
EDWIN GAGO 1230 EDA 2017
CP 51 CR-UU15G91-2010 Comm V. Capp, Edwin
Opinion
OPINION
SCHULMAN, S.1., J. 111111111111111111111111
8045556291
Appellant appeals this Court's Order dismissing his petition filed under the Post-
Conviction Relief Act, 42 Pa. C.S.A. §§ 9541-9546 ("PCRA"). This Court submits the following
Opinion pursuant to Pa. R.A.P. No. 1925 and recommends that Appellant's appeal be denied.
PROCEDURAL BACKGROUND
On September 26, 2011, a jury convicted Appellant of attempted murder in the first
degree (18 Pa. C.S. § 901), aggravated assault (18 Pa. C.S § 2702(a)(1)), possessing a firearm
without a license (18 Pa. C.S. § 6106(a)(1)), and possessing an instrument of a crime (18 Pa. C.S.
§ 907(a)). On March 23, 2012, Appellant was sentenced to an aggregate term of fifteen (15) to
thirty (30) years' incarceration)
Appellant filed a direct appeal, and on November 20, 2013, the Superior Court affirmed
the jury's verdicts and this Court's sentence. Commonwealth v. Gago. 1942 EDA 2012
(November 20, 2013) (Memorandum Opinion, J. Bender). Appellant subsequently filed a
petition for allowance of appeal to the Pennsylvania Supreme Court, which the Court denied on
June 12. 2014. Commonwealth v. Gao. 94 A.3d 1007 (Pa. 2014) (Table).
I 15-30 years imposed on attempted murder; 5-10 years concurrent imposed on aggravated
assault; 2-4 years concurrent imposed on possessing a firearm without a license; and no further
penalty imposed on possessing an instrument of a crime.
1
On May IX, 2015, Appellant filed a counseled PCRA Petition. On July 22, 2016, the
Commonwealth filed a motion to dismiss Appellant's petition. On December 9, 2016, Appellant
filed an amended Petition, and on December 12, 2016, this Court conducted an evidentiary
hearing on Appellant's claims.
On March 17, 2017, following the evidentiary hearing, this Court dismissed Appellant's
Petition. On April 17, 2017, Appellant filed a notice of appeal to the Superior Court, and on
May 19, 2017, Appellant filed a Statement of Matters Complained of on Appeal pursuant to Pa.
R.A.P. 1925(b).
RELEVANT FACT1AL HISTORY
This Court summarized the facts of this case in its Rule 1925(a) opinion filed on
November 12, 2012, which states:
At trial, the Commonwealth presented the testimony- of Edward DeOleo Valdez.
On September 21, 2010, Mr. DeOleo left the home he occupied with his girlfriend.
Maritza Rodriguez, at 3060 E. Street, to go to the corner grocery !store' at E. and
Clearfield [Streets]. Mr. [DeOleo] had worked at that grocery [store] for the previous
year and a half. He had originally met Maritza Rodriguez, as well as her previous
boyfriend, the Appellant, Edwin Gago, as customers at that store. Appellant and Ms.
Rodriguez have tw (2) children together.
While walking to the store, Mr. DeOleo heard steps behind him, turned, and saw a
person behind him, wearing a black mask.2 Recognizing his body, face and eyes, Mr.
2 Mr, DeOleo testified that he had previously had several encounters with Appellant during
which Appellant threatened him. One [such encounter] took place in July of 2010 at City Hall
where Mr. DeOleo, accompanied by Maritza Rodriguez and one of her sons by Appellant, Edwin
Jr. Gago, also known as Javier, had gone to get papers needed for his divorce. While there, they
saw Appellant who, according to Mr. DcOlco, came towards them with a threatening and
menacing face and told Mr. DeOleo that "I'm going to get you in the street, Cahron." Another
encounter took place the morning of September 21, 2010, when Mr. DeOleo was standing in the
front door of the house which he shared with Ms. Rodriguez. As he stood in the door way with
Javier Gago, Mr. DeOleo observed Appellant drive past in a truck and come to a stop in the road,
looking at Mr. DcOlco in what Mr. DeOleo described as a threatening manner. Mr. DeOleo
testified that he left the home and went to the grocery store because he was afraid and watched
from the grocery store as Appellant then circled the block and returned again to park in front of
the home.
2
DeOlco spoke Appellant's nickname, 'Mingo', and in response, heard Appellant say in a
voice which Mr. DeOleo recognized, '1 told you I would get you in the street, Cabron.'
Mr. DeOleo then turned, ran towards the grocery store, and heard gun shots as he ran.
Mr. DeOlco was struck in the back, stomach and head as he ran towards and into the
t
grocery store. The owner of the grocery store, Eustacia Guzman, came his assistance,
[and] called Maritza Rodriguez, who ran to the grocery store. As he lay on the floor of
the grocery store, Mr. DeOleo repeatedly told Ms. Guzman and Ms. Rodriguez that
'Mingo" had shot him.
Mr. DeOleo was taken to Temple University Hospital where he underwent
surgery on his pelvis, intestines and stomach. In addition to the wounds in his abdomen,
he also sustained wounds in his shoulder and on his head. He was hospitalized for nine
days and had a recovery period in excess of three (3) months. While at Temple
University Hospital, Mr. DeOleo was shown a photo array and identified Appellant as his
assailant. He again identified Appellant as his assailant at trial.
Appellant was, as of September 2010, under a Protection From Abuse ("PFA")
order obtained by Ms. Rodriguez. Ms. Rodriguez testified that she had sought the
restraining order in June of 2010 because Appellant had harassed her both at home and at
her place of employment, a Hess station on City Line Avenue, by repeated unwanted
visits and phone calls in which he threatened to kill himself' if Ms. Rodriguez would not
allow him to return to the home that he had shared with Ms, Rodriguez and their two
sons. Ms. Rodriguez testified that she observed Appellant driving past her home
displaying what she believed to be a gun. She testified that she was scared of Appellant
because she believed that he was violent, that she and [Appellant] argued, and that
[Appellant] choked her 'so many times.'
Appellant sought to establish that Ms. Rodriguez sent him messages through
Facebook and left text messages on his phone seeking to reconcile with him. Ms.
Rodriguez denied that she had made the Facebook postings or the phone calls. The
Commonwealth introduced testimony identifying the phone number used for these text
f
messages as belonging, at the time the alleged text messages, to Jorge Santoni,
Appellant's brother, not Ms. Rodriguez.
Appellant presented alibi testimony through his cousin, Damien Santoni, who
contended that Appellant was at his garage located at 249 West Duncannon Street' doing
electrical work at the time he allegedly had made the threatening drive -by on September
21, 2010[,] described by Mr. DeOleo[,] and that Appellant had been present at his garage
at 4610 4th Street at the time Mr, DeOleo was shot. Mr. Santoni's testimony was
supported by the testimony of his son, Devon Moore, who testified that he had seen
Appellant at the 249 West Duncannon [Street] garage as well as at the 4610 106 Street
garage at those times.
Appellant also presented the testimony of his niece, Yajaira Reyes, who lives with
his mother, to dispute the description of [the] July of 2010 encounter provided by Ms.
Rodriguez and Mr. eOleo. In contrast to the testimony of Mr. DeOleo and Ms.
3
Rodriguez, Ms. Reyes testified that the aggressor was Ms. Rodriguez who 'spoke in a bad
tone' to Appellant and said1,1 'What is this carbon doing here, this bastard, this son of a
bitch, I'm going to put him in jail.' Ms. Reyes testified that Appellant said nothing
during the encounter.
See Trial Court Opinion, 11/12/12 (citations to the record and emphasis omitted here).3
ISSUES RAISED ON APPEAL
Appellant raises the following issues on appeal:
1. "Trial counsel was ineffective for opening the door to the introduction of other act
evidence, including evidence of domestic violence '911' calls, which were made
in 2005 from the home that Mr. Gago and Ms. Rodriguez were sharing. These
calls did not provide evidence of violence towards Mr. DeOleo, the victim. That
other act evidence also included testimony that Petitioner was really violent and
choked and shook Ms. Rodriguez, was cheating on her, and drinking heavily and
using marijuana. N.T. 9/22/11, 82-83. This was solely evidence of domestic
abuse and violence, and/or was evidence not relevant to the charge that Mr. Gago
tried to kill Mr. DeOleo; and/or was intended to paint Mr. Gago as a bad man.
Counsel did not have a reasonable basis for opening the door to the presentation
of this evidence; and in using this evidence to prove that Mr. Gago was otherwise
violent, this evidence prejudiced him severely as it destroyed the presumption of
innocence and also tended to demonstrate that he was inherently a bad man."
2. "Counsel was ineffective for failing to object to the attempted murder and
aggravated assault instructions given by the Court. Trial Counsel had objected to
the proposed Commonwealth jury instnictions regarding these crimes because the
words 'allegedly shooting' and 'allegedly shot' were absent from the attempted
murder and aggravated assault instructions. The absence of this wording made it
appear that the Court was in agreement with the Commonwealth's proposed
instructions that. 'Mr. Gago had shot Mr. DeOleo three times.' Although, the
Court agreed with the defense position, N.T. 9/26/11, 8, the 'allegedly' language
was not included in those instructions, and Counsel never requested the Court to
modify the instructions and recharge the jury after these instructions were given
with the omitted language. Thus, both instructions reflected that Mr. Gago had
shot Mr. DeOleo three times. N.T. 9/26/11, 69-71. Counsel had no reasonable
basis for failing to object after the instruction was given, since it constituted
waiver of the claim. Furthermore, as noted above, Mr. Gaga was prejudiced by
this omission as it was made to appear that the Court agreed that Mr. Gago was
the shooter and it is an axiom of appellate law that juries are presumed to follow a
Court's instructions."
3The Superior Court relied on the same recitation of facts in its Memorandum Opinion filed on
November 20, 2013. See Commonwealth v. Gago, 1942 EDA 2012 (November 20, 2013)
(Memorandum Opinion, J. Bender).
4
3. "Counsel was ineffective in presenting attempted exculpatory evidence that phone
calls had been received by Mr. Gage from Maritza Rodriguez, in an attempt to
nullify the Commonwealth's jealousy motive, when the phone was listed in the
name of Jorge Santoni who is the brother of Mr. Gage, and the calls did not come
from Ms. Rodriguez. By presenting this testimony without taking the simple
steps of investigating the bona fides of this evidence, Counsel allowed the
Commonwealth to present testimony that Petitioner's defense was not truthful
which undercut his own defense and credibility with the jury. Counsel also had
no reasonable basis for not investigating to determine from whom the phone calls
were made, just as the prosecution did, and just like it should reasonably do with
all its witnesses and evidence to determine their bona fides. See, N.T. 9123/11,
37-43."
4. "Counsel was ineffective in failing to object to the hearsay evidence presented by
ADA Kathryn Brown that Jorge Santoni owned the phone, descried[sic] in the
above paragraph. This evidence was presented for the truth of the matter asserted,
i.e., that this phone number was listed to Jorge Santoni for the past five years.
Thus, this evidence was classic hearsay and not admissible. Pa. R.E. 801(c)."
5. "Counsel was ineffective for failing to seek to test the shell casings at the scene
for DNA evidence."
6. "The cumulative effect of all errors was so prejudicial that a new trial should be
granted, even if the errors were not individually significant enough to require the
grant of a new trial."
DISCUSSION
This Court will address Appellant's claims in the order raised above.
1. Whether "[t]rial counsel was ineffective for opening the door to the
introduction of other act evidence, including evidence of domestic violence '911' calls,
which were made in 2005 from the home that Mr. Gage and Ms. Rodriguez were sharing."
The standard of review from the denial of post -conviction relief "is limited to examining
whether the lower court's determination is supported by the evidence of record and whether it is
free of legal error." Commonwealth v. Jones. 590 Pa. 202, 240-241 (2006). "While [appellate
courts] will always defer to [the] PCRA court's factual determinations where supported by the
record, the ultimate question of whether facts rise to the level of arguable merit is a legal
5
determination," Id. "The findings of a post -conviction court, which hears evidence and passes
on the credibility of witnesses, should be given great deference." Id, at 244, Appellate courts
"will not disturb the findings f the PCRA court if they are supported by the record, even where
the record could support a contrary holding." Id. The "scope of [appellate] review is limited to
the findings of the PCRA court and the evidence on the record of the PCRA court's hearing,
viewed in the light most favorable to the prevailing party." Id. The findings of the PCRA court
"will not be disturbed unless they have no support in the certified record." Commonwealth v.
Sampson, 900 A.2d 887, 890 (Pa. Super. 2006).
"It is well -established that counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel's performance was deficient and that such
deficiency prejudiced him." Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). "[A]
PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence,
that his conviction or sentence resulted from the 'ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth -determining process that no reliable
adjudication of guilt or innocence could have taken place." Commonwealth v. Spotz, 624 Pa, 4,
33 (Pa. 2014). "Thus, to prove counsel ineffective, Appellant must demonstrate that: (1) the
underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable
basis; and (3) Appellant was prejudiced by counsel's act or omission." Id. "lf a petitioner fails to
prove any of these prongs, his claim fails." Spotz, 624 Pa. 4, 33. Moreover, "it is well -settled
that a court is not required to analyze the elements of an ineffectiveness claim in any particular
order of priority; instead, if a claim fails under any necessary element of the test, the court
may proceed to that element first." Koehler, 36 A.3c1 121, 132.
Appellant claims his trial counsel rendered ineffective assistance by "opening the door"
to "evidence of domestic violence '911' calls ... made in 2005 from the home that [Appellant]
and Ms. Rodriguez were sharing;" and to "testimony that [Appellant] was really violent and
choked and shook Ms. Rodriguez, was cheating on her, and drinking heavily and smoking
marijuana." Appellant claims such evidence was inadmissible under Pennsylvania Rule of
Evidence 404(b), which provides in pertinent part:
(b) Crimes, Wrongs or Other Acts.
Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a
(1.)
person's character in order to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this evidence is admissible only if the
probative value of the evidence outweighs its potential for unfair prejudice.
See Pa. R.E. 404(b).
This Court will summarize the testimony and evidence that is relevant to this issue. On
direct examination, Ms. Rodriguez testified that her relationship with Appellant had ended in
April 2010, when she "kick[edr him out of the home they shared. Because Appellant began
harassing and threatening her at home, at her work, and n the phone, Ms. Rodriguez obtained a
Protection From Abuse (PFA) order in June 2010. In violation of the PFA order, Appellant
continued calling Ms. Rodriguez, pleading with her to give their relationship "another
opportunity." Appellant repeatedly told Ms. Rodriguez that he was "sad," "desperate," warned
his family back," and was contemplating suicide. (N.T., 9/21/11, pgs. 90-96).
Ms. Rodriguez testified that on July 7, 2010, she went to City Hall with Mr. DeOleo to
assist him with divorce paperwork. Appellant was at City Hall that same day and saw Ms.
Rodriguez and Mr. DeOleo. Appellant appeared "really mad" and told Mr. DeOleo, "Oh, you
7
are the one, Cabron, with her, I got you in the street." Appellant also addressed Ms. Rodriguez
and said, "You with him. Oh, he's the one you with, him." That same month, Appellant
repeatedly drove by Ms. Rodriguez's home. On one occasion, Appellant drove by and called
Ms. Rodriguez a "puts." Another time, on July 13, 2010, Ms. Rodriquez filed a police report
after Appellant drove by while holding an object which Ms. Rodriquez believed to he a gun. Ms.
Rodriguez testified that Appellant's harassment "scared" her because Appellant is "really
violent." (NJ., 9/21/11, pgs. 96-103).
On cross-examination, trial counsel examined Ms. Rodriguez about whether she was "the
jealous one" in her relationship with Appellant. In this regard, trial counsel examined Ms.
Rodriguez about an assault she committed in 2007, when she punched and cut Appellant's
former wife/girlfriend with whom Appellant was having a sexual affair. Appellant impregnated
his former wife/girlfriend at the same time he impregnated Ms. Rodriguez, who testified she was
"hurt" and felt deceived by Appellant. Trial counsel similarly examined Ms. Rodriguez about
whether her overall relationship with Appellant was "stormy, "rocky," "tumultuous," and
"[p]roblematic." (N.T., 9/21/11, pgs. 119-125; NJ., 9/22/11, pgs. 46-47).
Trial counsel as well examined Ms. Rodriguez about phone calls and text messages she
purportedly made to Appellant alter the shooting. Trial counsel also examined Ms. Rodriguez
about Facebook messages that she purportedly sent to Appellant under an account belonging to
"Mariela Santiago." In these Facebook postings, Ms. Rodriguez purportedly stated that she
loved and missed Appellant. Ms. Rodriguez denied making the phone calls and sending all but
one of the text messages, and denied owning the Facebook account under the name Mariela
Santiago and sending Appellant any Facebook messages. (Id. at pgs. 47-69).
8
Trial counsel additionally asked Ms. Rodriguez about a Police report she filed on July 7,
2010, and whether "that [was] the first report to a police officer regarding these sets of
circumstances?" Ms. Rodriguez replied that prior t the incident on June 7, 2010, she had made
a "few more" police reports regarding Appellant. Trial counsel asked Ms. Rodriguez whether
she possessed "any paperwork" concerning the prior police reports, and Ms. Rodriguez testified,
"[n]o." (N.T., 9/21/11, pgs. 131-132).
Trial counsel further attempted to establish that relations between Appellant and Ms.
Rodriguez were amicable during the few months preceding the shooting, insofar as they were
cooperating with each other regarding child custody and visitation rights. Trial counsel thus
attempted to undercut Ms. Rodriguez's implication that Appellant was beset by jealousy and
anger over Ms. Rodriguez's relationship with Mr. DeOleo. (N.T., 9/21/11, pgs. 139-142; N.T.,
9/22/11, pgs. 32-33).
On re -direct examination, the Commonwealth examined Ms. Rodriguez about her
"tumultuous, jealous relationship" with Appellant, which trial counsel had already referenced.
Ms. Rodriguez testified that Appellant was "really violent" during their relationship and would
"shake" and "choke" her. Over trial counsel's objection, Ms. Rodriguez testified that she was in
"a really violent relation with [Appellant], ... especially emotional because he cheating, in the
past he drink, he use marijuana." (N.T., 9/22/17, pgs. 82-83).
Over trial counsel's objection, the Commonwealth also introduced a document showing
that eleven 911 calls were made from the homes that Appellant and Ms. Rodriguez shared during
their relationship. The document was admitted to establish the dates on which the calls were
made, the addresses from which they were made, and the "coding" of the calls ("domestic
incident" or "person screaming"). (N.T., 9/23/11, pgs. 62-64).
9
On direct appeal, the Superior Court addressed Appellant's challenge to Ms. Rodriguez's
testimony that Appellant was "really violent" and had "choked and shook her." The Superior
Court agreed with this Court that trial counsel "had 'opened the door' t the nature of the
relationship between Ms. Rodriguez and Appellant," and thus "Rule 404(b) did not bar ...
admission" of the testimony. Commonwealth v. Gago, 2013 Pa. Super. Unpub. LEXIS 2819,
*18-19 (Pa. Super. 2013). The Superior Court also held that trial counsel had "opened the door
to the evidence of the 911 calls ('911 call log') made from the home shared by Ms. Rodriguez
and Appellant." Id. at *20.
In his PCRA petition and Rule 1925(b) Statement, Appellant claims his trial counsel "did
not have a reasonable basis for opening the door to the presentation of 'the abovel evidence; and
in using this evidence to prove that Mr. Gago was otherwise violent, this evidence prejudiced
him severely as it destroyed the presumption of innocence and also tended t demonstrate that he
was inherently a had man."
"[W]here matters of strategy and tactics are concerned, counsel's assistance is deemed
constitutionally effective if he chose a particular course that had some reasonable basis designed
to effectuate his client's interests." Koehler, 36 A.3d 121, 132. "[A] Ending that a chosen
strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative
not chosen offered a potential for success substantially greater than the course actually pursued."
Spotz, 624 Pa. 4, 33; Commonwealth v. David°, 106 A.3d 611, 620-621 (Pa. 2014). "In
reviewing trial counsel's performance, [courts] will not find ineffectiveness for failure to choose
the best trial tactics or strategy to effectuate Appellant's interests." Commonwealth v. Showers,
681 A.2d 746. 753 (Pa. Super. 1996). "Rather, the proper inquiry is whether counsel's actions or
lack thereof had some reasonable basis." Id. "If so, counsel is deemed effective." Id. "Not every
10
choice made by counsel will play out as intended; however, the test is not whether the course
chosen is successful, but rather whether in making that choice there was a logical reason
supporting counsel's action." Commonwealth v. Smith, 606 Pa. 127, 155 (Pa. 2010) (citations
omitted here).
"[A] claim of ineffectiveness may not be evaluated in hindsight." Commonwealth v.
Speight, 544 Pa. 451, 461 (Pa. 1996). Rather, all a court "need[s] [to] determine is whether the
course of action chosen by trial counsel at the time of trial had some reasonable basis designed to
effectuate his client's best interests, and, if so, [the court] will deem counsel effective and [the]
inquiry ends." Id. Moreover, the ineffectiveness standard "calls for an inquiry into the objective
reasonableness of counsel's performance, not counsel's subjective state of mind."
Commonwealth v. Philistin, 617 Pa. 358 at fn. 23 (Pa. 2012) (citing Harrington v. Richter, 562
U.S. 86, 110 (201 1); Strickland v. Washington, 466 U.S. 668, 688 (1984)).
During Appellant's PCRA hearing, trial counsel did not have a solid recollection of his
strategic decisions at trial. Nevertheless, counsel testified that his goal in examining Ms.
Rodriguez about her relationship with Appellant, which encompassed the assault she committed
on Appellant's former wife/girlfriend in 2007, was "to undercut the insinuation by the
Commonwealth that [Appellant] was the more violent of the individuals" in the "admittedly ...
stormy relationship." (N.T., 12/12/16, pgs. 15-18). Moreover, during the pretrial motion
hearing, trial counsel explained that he sought to cross-examine Ms. Rodriguez about her 2007
assault in order to undercut the Commonwealth's theory that Appellant had shot Mr. DeOleo
"over jealousy." In counsel's words:
... The victim in that case is a lady by the name of Betzaida Lopez... This was
[Appellant's] former wife. [Appellant] has two children with Betzaida Lopez, he has two
children, he has two boys with Maritza Rodriguez. Maritza Rodriguez stabbed Betzaida
because she believed that [Appellant] was still sleeping with Betzaida. This goes to
11
undercut their theory that it was [Appellant], since we are allowing in the general theory
about the jealousy, because that's their theory that this was a shooting over jealousy, that
it was, in fact, Maritza Lopez, who is the jealous one with regard to this relationship.
So it is directly relevant as to who the victim is, the connection that Ms.
Rodriguez has with Ms. Lopez and the ongoing jealousy between the two woman
regarding children, the two girls versus the two boys. So it goes to undercut the
Commonwealth's theory that Maritza Rodriguez wants nothing to do with [Appellant],
that she was absolutely led up with him. In fact, it was the opposite. And we will be
providing that cross-examination and rebuttal throughout the defense. This is directly
relevant.
(N.T., 9/19/11, pgs. 43-44).
It was clear the Commonwealth had sought to establish that jealousy was Appellant's
motive for shooting Mr. eOleo. The Commonwealth examined Ms. Rodriguez about
Appellant's numerous phone calls to her in which he alternately expressed regret, anger, and
sadness over the end of their relationship. The Commonwealth also examined Ms. Rodriquez
about Appellant's threatening conduct and remarks to Mr. DeOleu and Ms. Rodriguez. It was
equally clear that, on cross-examination, trial counsel sought to undercut the Commonwealth's
jealousy theory by establishing it was Ms. Rodriguez, not Appellant, who was jealous and
vindictive about their tumultuous relationship. Moreover, trial counsel sought to establish that
the prior "tumultuous," "rocky" relationship did not support a motive to shoot Mr. DeOlen
because their relationship was amicable during the two months preceding the shooting.
Under the circumstances, trial counsel's effort to undercut the Commonwealth's jealousy
theory by examining Ms. Rodriguez about her relationship with Appellant, and about her own
jealousy -inspired violence, had "some reasonable basis" designed to effectuate Appellant's
interests. Speight, 544 Pa. 451, 461 (counsel is deemed effective if his "course of action chosen
... at the time of trial had some reasonable basis designed to effectuate his client's best
interests[.]"). That counsel's strategy proved unsuccessful is immaterial. Smith, 606 Pa. 127,
12
155 ("[T]he test is not whether the course chosen is successful, but rather whether in making that
choice there was a logical reason supporting counsel's action.''),
Regarding the 911 call log, trial counsel testified that he was unaware of the log's
existence but "probably should have anticipated it." However, the log did not indicate who made
the 911 calls or specifically why they were made. To establish prejudice for his ineffectiveness
claim, Appellant must show there "is a reasonable probability that, but for counsel's error, the
outcome of the [trial] would have been different," Smith, 606 Pa. 127, 141. Putting aside the
911 log, the properly admitted evidence included the victim's multiple identifications of
Appellant as the shooter, and Appellant's post-PFA order harassment and threats to the victim
and Ms. Rodriguez. Given this compelling evidence, it is not reasonably probable that the brief
presentation of the call log, which provided little context regarding the calls, had tipped the scale
in this case. Appellant's PCRA claim on this ground therefore was properly dismissed.
2. Whether trial counsel "was ineffective for failing to bject to the attempted
murder and aggravated assault instructions given by the Court."
Appellant alleges that his trial counsel was ineffective for failing to object to this Court's
following jury instructions for the crimes of attempted murder and aggravated assault:
First of all, Mr. Gago's charged with attempted murder. To find him guilty you
must find three elements have been proven to you beyond a reasonable doubt.
Number one, that Mr. Gago did a certain act; that is, that he shot Mr. DeOleo three
times in the back, the stomach, the head. That's the first element. Number two, that
when he shot Mr. DeOleo three times the defendant had the specific intent to kill him;
that is, he had a fully informed intent to kill and was conscious of his own intention. And
the third element is that the shooting constituted a substantial step toward the commission
of a killing that the defendant intended to bring about.
Those are the three elements of attempted murder,
13
If you are satisfied that the three elements of attempted murder have been
proven beyond a reasonable doubt, then you should find the defendant guilty.
Otherwise, you must find him not guilty.
Mr. Ciago is also charged with aggravated assault. It is a separate crime. To find
him guilty of this offense there are three elements that must be proven to you
beyond a reasonable doubt. Number one, that the defendant caused serious bodily
injury to Mr. DeOleo when he shot him three times. Serious bodily injury is bodily
injury that creates a substantial risk of death or that causes serious permanent
disfigurement or protracted loss or impairment of the function of any bodily member or
organ.
The second element is that the defendant acted intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the value of human
life. And, actually, there are two elements, apologize. That was the second element I
1
just gave to you.
(N.T., 9/26/11, pgs. 69-72) (bold print supplied here).
Appellant argues that the word "allegedly" should have preceded the word "shot" in the
Court's instructions. Appellant claims he "was prejudiced by this omission as it was made to
appear that the Court agreed that [Appellant] was the shooter" rather than the "alleged" shooter,
and "it is an axiom of appellate law that juries are presumed to follow a Court's instructions."
"When evaluating the propriety ofjury instructions, [courts] will look to the instructions
as a whole, and not simply isolated portions, to determine if the instructions were improper."
Commonwealth v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) (citations omitted here).
"[1]t is an unquestionable maxim of law in this Commonwealth that a 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." Id. "Only where
there is an abuse of discretion or an inaccurate statement of the law is there reversible error." Id.This Court's instructions clearly tracked the language of Pennsylvania's Suggested
Standard Jury Instructions (Crirn) § 12.901 A.1 and 15.2702B. It is therefore "presumed that
such instructions are an accurate statement of the law." Commonwealth v. Kerrigan, 920 A.2d
14190, 198 (Pa. Super. 2007) (citing Commonwealth v. Prosdocimo. 578 A.2d 1273, 1277 (Pa.
1990)). Moreover, this Court instructed that Appellant's shooting of the victim was an element
of both crimes, which must be proven to the jury beyond a reasonable doubt. Viewed in its
entirety, this Court's instructions unquestionably advised that it was the jury's prerogative to
determine whether the Commonwealth established beyond a reasonable doubt that Appellant had
shot Mr. DeOleo, and Appellant's appeal on this ground is meritless.4
3. Whether trial counsel "was ineffective in presenting attempted exculpatory
evidence that phone calls had been received by Mr. Gaga from Maritza Rodriguez, in an
attempt to nullify the Commonwealth's jealousy motive, when the phone was listed in the
name of Jorge Santoni who is the brother of Mr. Gaga, and the calls did not come from Ms.
Rodriguez."
Appellant provided his counsel with fabricated evidence that Ms. Rodriguez had called
and texted Appellant from a particular phone number. It turned out that the phone number
4 This Court additionally instructed the jury as follows regarding Appellant's presumption of
innocence, the jury's role as factfinder, and the Commonwealth's burden of proof:
[Tihe defendant is presumed to be innocent. The fact that he was arrested and accused
of a crime is not evidence against him. Furthermore, the defendant is presumed innocent
throughout the trial and unless and until you conclude based upon your careful and
impartial consideration of the evidence that the Commonwealth has proven his guilt
beyond a reasonable doubt.
defendant's burden to prove that he is not guilty. Instead, it's the
It is not the
Commonwealth that always has the burden of proving each and every element of the
crimes charged and that the defendant is guilty of those crimes beyond a reasonable
doubt. The person accused of a crime is not required to present any evidence or prove
anything in his own defense. If the Commonwealth's evidence fails to meet its burden
then your verdict must be not guilty. On the other hand, if the Commonwealth's
evidence does prove to you beyond a reasonable doubt that the defendant is guilty, then
your verdict should be guilty. (N.T., 9/26/1 I: pgs. 52-53).
25
belonged to Appellant's brother, not to Ms. Rodriguez. Appellant now complains that his
counsel was ineffective for not investigating Appellant's false evidence that Appellant wished to
have presented at trial. Appellant's argument is frivolous.
"The reasonableness of counsel's investigation and preparation depends critically on the
information supplied by the defendant." Commonwealth v. Uderra, 550 Pa. 389, 401 (1998)
(citing Commonwealth v. Peterkin, 511 Pa. 299 (1986); Strickland v. Washington, 466 U.S. 668(1984)). The United States Supreme Court has explained:
The reasonableness f
counsel's actions may be determined or substantially influenced
by the defendant's own statements or actions. Counsel's actions are usually based, quite
properly, on informed strategic choices made by the defendant and on information
supplied by the defendant. In particular, what investigation decisions are reasonable
depends critically on such information. For example, when the facts that support a
potential line of defense are generally known to counsel because of what the defendant
has said, the need for further investigation may be considerably diminished or eliminated
altogether. And when a defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful, counsel's failure to pursue
those investigations may not later be challenged as unreasonable. In short, inquiry into
counsel's conversations with the defendant may be critical to a proper assessment of
counsel's investigations decisions, just as it may he critical to a proper assessment of
counsel's other litigation decisions.
Strickland, 466 U.S. 688. 691.
Counsel's failure t catch Appellant's own deception does not equate to ineffective
assistance, and Appellant's lies merit n relief. See Uderra. 550 Pa. 389. 401 ("Appellant's own
failure to cooperate with counsel in order to apprise him of allegedly relevant information cannot
.. provide a basis for ineffectiveness claims.").
4. Whether trial counsel "was ineffective in failing to object to the hearsay
evidence presented by ADA Kathryn Brown that Jorge Santoni owned the phone" which
Appellant had falsely claimed to have belonged to Ms. Rodriguez.
16
On September 22, 2011, trial counsel cross-examined Ms. Rodriguez about phone calls
she purportedly made to Appellant from the number (267) 257-2067. Ms. Rodriguez denied
making the calls and did not recollect ever possessing a phone with that number. (N.T., 9/22/11,
pgs. 47-69). That evening the prosecutor called that number in the presence of her colleague,
assistant district attorney Katie Brown, Esquire (Ms. Brown), from the prosecutor's office. The
following day, September 23, 2011, Ms. Brown testified that she listened to the call, that a male
identifying himself as Jorge Santoni answered the phone, and that this male stated that the
number - i.e., (267) 257-2067 - belonged to him. The male stated that he had possessed that
phone number for five (5) years. (N.T., 9/23/11, pgs. 127-132).
Appellant claims that Ms. Brown's testimony concerning the male's statements were
"presented for the truth of the matter asserted - i.e., that [the] phone number was listed to Jorge
Santoni for the past five years." Appellant therefore claims "this evidence was classic hearsay
and not admissible."
Hearsay "is a statement made by someone other than the declarant while testifying at trial
and is offered into evidence to prove the truth of the matter asserted[.]" Commonwealth v. Ali,
608 Pa. 71, 126 (Pa. 2010). However, "[t]he hearsay rule has no application where the question
is whether certain things were said or written by a third person and not whether they are true."
Commonwealth v. Jacobs. 445 Pa. 364, 367 (Pa. 1971). "When a witness testifies that someone
said something to him and the purpose is not to show that what was said was true but that the
statement was made, the testimony is not hearsay but instead a 'verbal act.'" Commonwealth v.
Jones, 543 A.2d 548, 550 (Pa. Super. 1988); Commonwealth v. Wright, 455 Pa. 480, 485 (Pa.
1974) ("The hearsay rule does not apply to all statements made to or overheard by a witness, but
only those statements which are offered as proof of the truth of what is said.").
17
The Commonwealth presented Ms. Hail's testimony to establish that the phone number
belonged to someone other than -Ms. Rodriguez, not to prove the content of the phone
conversation. Since Ms. Hall's testimony was not presented to prove the content of the phone
conversation, but to establish circumstantially that Ms. Rodriguez had not called Appellant from
that number, the testimony was properly admitted as "verbal act" evidence.
5. Whether trial counsel "vvas ineffective for failing to seek to test the shell
casings at the scene for DNA evidence?"
At the PCRA hearing, Appellant claimed his trial counsel was ineffective for failing to
obtain DNA testing of the shell casings recovered from the shooting scene. Appellant's claim is
too speculative to merit relief.
"A defendant raising a claim of ineffective assistance of counsel is required to show
actual prejudice: that is, that counsel's ineffectiveness was of such magnitude that it could have
reasonably had an adverse effect on the outcome of the proceedings." Commonwealth v.
Charleston, 94 A.3c11012, 1019-1020 (Pa. Super. 2014) (quoting Commonwealth v. Spatz, 84
A.3d 294, 315 (2014)). "This standard is different from the harmless error analysis that is
typically applied when determining whether the trial court erred in taking r failing to take
certain action." Id. "The harmless error standard ... states that whenever there is a 'reasonable
possibility' that an error might have contributed to the conviction, the error is not harmless." Id."This standard, which places the burden on the Commonwealth to show that the error did not
contribute to the verdict beyond a reasonable doubt, is a lesser standard than the ... prejudice
standard, which requires the defendant to show that counsel's conduct had an actual adverse
effect on the outcome of the proceedings." Id. "This distinction appropriately arises from the
difference between a direct attack on error occurring at trial and a collateral attack on the
18
stewardship of counsel." Id. "In a collateral attack, we first presume that counsel is effective,
and that not every error by counsel can or will result in a constitutional violation of a defendant's
Sixth Amendment right to counsel." Id. "Unsupported speculation does not establish [a]
reasonable probability" that counsel's ineffectiveness could have reasonably had an adverse
effect on the outcome of the trial. Id. at 1026.
Here, it would be too speculative to find that DNA testing would have favorably
impacted Appellant's position at trial. The shooter (a) wore gloves; and (b) even if the shooter
had handled the bullets with his bare hands, all or most of the DNA would likely have been
destroyed by the heat/combustion created when the bullets were discharged from the gun's
chamber. (See N.T., 12/12/16, pgs, 62-64). Thus, Appellant cannot establish the prejudice
prong of his ineffectiveness claim. See Charleston. supra ("Unsupported speculation does not
establish reasonable probability."). Beyond that, given the victim's repeated and consistent
identifications of Appellant as the shooter, there was a reasonable risk that DNA analysis would
have inculpated Appellant. Accordingly, counsel's decision to forego such testing and focus on
other avenues of defense was reasonable. See Richter, 562 U.S. 86, 108 ("An attorney need not
pursue an investigation that would he fruitless, much less one that might be harmful to the
defense.").
6. Whether "ItJhe cumulative effect of all errors was so prejudicial that a new
trial should be granted, even if the errors were not individually significant enough to
require the grant of a new trial."
Since trial counsel's above -referenced conduct was either reasonable or did not so
prejudice Appellant as to adversely affect the outcome of trial, Appellant is not entitled to a new
trial and his appeal should he denied.
19
CONCLUSION
For the reasons set forth in the foregoing Opinion, this Court's Order dismissing
Appellant's PCRA Petition should be affirmed.
BY THE COURT:
DATE: ()-Cligivi,7
SAN I. SCHULMAN, J.
20
PROOF OF SERVICE
I, Darece Williford, secretary to Honorable Susan I. Schulman, hereby certify that I
served, on December 20, 2017 by first-class mail, postage prepaid, a true and correct copy
of the foregoing Opinion on the following:
Jerome M. Brown, Esquire
8 Penn Center Plaza
1628 JFK Boulevard, Suite 1000
Philadelphia, PA 19103
Hugh Burns, ADA
istrict Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Darece Williford