Com. v. Jimenez, E.

J-S68022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ENRIQUE JIMINEZ
Appellant No. 3467 EDA 2013
Appeal from the PCRA Order November 5, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014598-2007
BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 12, 2014
Appellant, Enrique Jiminez, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, which dismissed his petition
for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The trial court opinion sets forth the relevant facts and procedural
history of this appeal as follows.
[On] March 20, 2007, […Appellant] shot and killed Mr. Luis
‘Chucky’ Alomar. Following [Appellant’s] waiver of his
right to a jury trial, [Appellant] was tried by this [c]ourt in
June of 2009, and at the conclusion of the trial, [Appellant]
was found guilty of first-degree murder and [possessing an
instrument of crime.2] Sentencing was deferred until
September 25, 2009, on which date concurrent sentences
of life imprisonment and two and one-half to five years[’]
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 2502(a), 907(b), respectively.
J-S68022-14
imprisonment were imposed on [Appellant] on the first-
degree murder charge and weapons offense[,]
respectively. [Appellant] filed [a] timely notice of appeal
to the Superior Court on October 19, 2009.
On December 2, 2010, the Superior Court affirmed the
judgment of sentence. On December 22, 2010,
[Appellant] filed [a] petition for allowance of appeal to the
Supreme Court, which was denied on May 4, 2011. On
February 2, 2012, [Appellant] filed a petition under the
[PCRA], and Stephen T. O'Hanlon, Esquire, was appointed
as PCRA counsel for [Appellant]. On February 28, 2013,
Mr. O'Hanlon filed a no-merit letter [pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988), and
Commonwealth v. Finley, 550 A.2d 213(Pa.Super.1988)], asserting that [Appellant’s] PCRA
petition was without merit[,] following which this [c]ourt
filed and sent [Appellant] notice pursuant to [Pa.R.Crim.P.
907] of its [intention] to dismiss [Appellant’s] PCRA
petition.[3] On May 31, 2013, this [c]ourt dismissed
[Appellant’s] PCRA petition. Inexplicably, a copy of the
order denying [Appellant] PCRA relief was not sent to
[Appellant,] and on October 28, 2013, [Appellant] filed a
motion to have his appellate rights reinstated nunc pro
tunc, asserting that he never received this [c]ourt's order
dismissing his PCRA petition. On November 5, 2013, this
[c]ourt granted [Appellant] the right to appeal the
dismissal of [the] PCRA petition.
PCRA Court Pa.R.A.P. 1925(a) Opinion, filed December 9, 2013, at 1-2.
____________________________________________
3
The court filed the Rule 907 notice on April 26, 2013. In his brief,
Appellant claims that he filed an objection to the notice on May 10, 2013.
However, this document does not appear in either the criminal docket or the
record. “[A] petitioner waives issues of PCRA counsel's effectiveness
regarding Turner/Finley requirements if he declines to respond to the PCRA
court's notice of intent to dismiss.” Commonwealth v. Rykard, 55 A.3d
1177, 1186 (Pa.Super.2012), appeal denied, 64 A.3d 631 (Pa.2013)(internal
citations omitted). Although Appellant’s issues are arguably waived, we will
address them as if he timely filed an objection to the Rule 907 notice.
-2-
J-S68022-14
On November 20, 2013, Appellant timely filed a notice of appeal and a
concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(b).
Appellant raises the following issues for our review:
WHETHER [THE] PCRA COURT ERRED AS A MATTER OF
LAW IN PERMITTING COUNSEL TO WITHDRAW UPON A
DEFICIENT TURNER/FINLEY NO MERIT LETTER?
WHETHER PCRA COUNSEL FILED A DEFECTIVE NO MERIT
LETTER THAT WAS BOTH FACTUALLY AND LEGALLY
DEFICIENT?
Appellant’s Brief at 4.
In his combined issues, Appellant argues his counsel’s no-merit letter
was both factually and legally deficient. Specifically, Appellant contends his
PCRA counsel did not properly review the record or raise all of Appellant’s
possibly valid claims in his no-merit letter. Appellant concludes his counsel’s
defective no merit letter entitles to him to PCRA relief, namely a new trial.
We disagree.
Our standard of review is well-settled. “In reviewing the denial of
PCRA relief, we examine whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Fears,
86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).
“The scope of review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to the prevailing party
at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)
-3-
J-S68022-14
(citation omitted). “It is well-settled that a PCRA court’s credibility
determinations are binding upon an appellate court so long as they are
supported by the record.” Commonwealth v. Robinson, 82 A.3d 998,
1013 (Pa.2013) (citation omitted). However, this Court reviews the PCRA
court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa.Super.2014) (citation omitted).
Our Supreme Court has explained the procedure required for court-
appointed counsel to withdraw from PCRA representation:
[Turner and Finley] establish the procedure for
withdrawal of court-appointed counsel in collateral attacks
on criminal convictions. Independent review of the record
by competent counsel is required before withdrawal is
permitted. Such independent review requires proof of:
1) A ‘no-merit’ letter by PCRA counsel detailing the
nature and extent of his [or her] review;
2) A ‘no-merit’ letter by PCRA counsel listing each
issue the petitioner wished to have reviewed;
3) The PCRA counsel’s ‘explanation’, in the ‘no-merit’
letter, of why the petitioner’s issues were meritless;
4) The PCRA court conducting its own independent
review of the record; and
5) The PCRA court agreeing with counsel that the
petition was meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.2009) (citations
omitted). In addition, this Court has required that PCRA counsel who seeks
to withdraw must:
-4-
J-S68022-14
contemporaneously serve a copy on the petitioner of
counsel’s application to withdraw as counsel, and must
supply the petitioner both a copy of the ‘no-merit’ letter
and a statement advising the petitioner that, in the event
the court grants the application of counsel to withdraw, he
or she has the right to proceed pro se or with the
assistance of privately retained counsel.
Commonwealth v. Friend, 896 A.2d 607, 614 (Pa.Super.2006) (emphasis
deleted). Further,
[i]f counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach
the merits of the underlying claims but, rather, will merely
deny counsel’s request to withdraw. Commonwealth v.
Mosteller, 633 A.2d 615, 617 (Pa.Super.1993). Upon
doing so, the court will then take appropriate steps, such
as directing counsel to file a proper Turner/Finley request
or an advocate’s brief. Commonwealth v. Karanicolas,
836 A.2d 940, 948 (Pa.Super.2003).
However, where counsel submits a petition and no-merit
letter that do 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. Mosteller, 633 A.2d at 617. By contrast, if the
claims appear to have merit, the court will deny counsel's
request and grant relief, or at least instruct counsel to file
an advocate's brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721-22 (Pa.Super.2007).
Instantly, PCRA counsel complied with Turner and Finley. His no-
merit letter details the nature and extent of his review by stating that he
“reviewed the Quarter Sessions file, reviewed all available Notes of
Testimony (NT) pertaining to the case, and reviewed the applicable law.”
-5-
J-S68022-14
Finley Letter, filed February 28, 2013, p. 1. Counsel listed each of the six
issues Appellant wished to have reviewed, and explained, with an accurate
statement of the law, why each issue was meritless. Id. at 2-10. The PCRA
court then conducted its own independent review of the record and found
that Appellant’s “issues lacked merit and that PCRA counsel had no basis,
factual or legal, to file an amended petition.” PCRA Court Opinion at 4.
Along with his “no-merit” letter, counsel filed a motion to withdraw and
supplied Appellant with a copy of the no-merit letter and a statement
advising Appellant that, in the event the court granted counsel’s application
to withdraw, he had the right to proceed pro se or with the assistance of
privately retained counsel. Therefore, we conclude that PCRA counsel has
satisfied the requirements of Turner/Finley.
Appellant raised six issues in his PCRA petition, all of which PCRA
counsel included in his Turner/Finley letter on appeal:
[WHETHER] TRIAL COUNSEL WERE INEFFECTIVE IN THEIR
FAILURE TO PRESENT THE EYEWITNESS TESTIMONY OF
JUAN DELGADO, EVAN GOMEZ, AND ISMAEL FALU[?]
[WHETHER] TRIAL COUNSEL WERE INEFFECTIVE FOR
ENTERING INTO AN AGREEMENT WITH THE
COMMONWEALTH TO PERMIT THE TESTIMONY OF
DETECTIVE AGAPITO OSANO FOR THE PURPOSE OF
MOTIVE[?]
[WHETHER] TRIAL COUNSEL WERE INEFFECTIVE FOR
STIPULATING TO THE TESTIMONY OF DETECTIVE THOMAS
GAUL AND FORENSIC SCIENTIST EMIRA GAMAL[?]
-6-
J-S68022-14
[WHETHER] TRIAL COUNSEL WERE INEFFECTIVE FOR
FAILING TO REQUEST A RELIABILITY HEARING OF
COMMONWEALTH’S PAID WITNESSES[?]
[WHETHER] TRIAL COUNSEL WERE INEFFECTIVE FOR
FAILING TO OBJECT TO THE EYEWITNESS TESTIMONY OF
CRYSTAL LEON AND STEPHANIE ROSADO ON THE
GROUNDS THAT IT WAS MORE PREJUDICIAL THAN
PROBATIVE BECAUSE IT INTRODUCED PRIOR BAD ACT
EVIDENCE[?]
[WHETHER] PETITIONER IS ENTITLED TO A NEW TRIAL
BECAUSE THE COMMONWEALTH COMMITTED
PROSECUTORIAL MISCONDUCT BY PRESENTING THE
MENDACIOUS TESTIMONY OF CHRISTOPHER LEON[?]
Turner/Finley Letter, at 2-10.
In the first five issues in his PCRA petition, Appellant argues his
counsel was ineffective. He concludes the ineffective assistance of counsel
entitles him to a new trial. We disagree.
This Court follows the Pierce4 test adopted by our Supreme Court to
review claims of ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from
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. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
____________________________________________
4
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
-7-
J-S68022-14
(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
of counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective, and it
is the burden of Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal
citations and quotations omitted). The petitioner bears the burden of
proving all three prongs of this test. Commonwealth v. Meadows, 787
A.2d 312, 319-320 (Pa.2001). “If an appellant fails to prove by a
preponderance of the evidence any of the Pierce prongs, the Court need not
address the remaining prongs of the test.” Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa.2010) (citation omitted).
In his first issue, Appellant argues his counsel was ineffective for
failing to call certain defense witnesses.
To obtain relief on a missing witness claim, the appellant is required to
establish that (1) the witness existed; (2) the witness was available; (3)
counsel was informed of the existence of the witness or counsel should
otherwise have known of him; (4) the witness was prepared to cooperate
and testify for appellant at trial; and (5) the absence of the testimony
prejudiced appellant so as to deny him a fair trial. Commonwealth v.
Stanley, 632 A.2d 871, 872 (Pa. 1993) (citing Commonwealth v. Petras,
534 A.2d 483, 485 (Pa. Super. 1987)). It is the appellant’s responsibility to
show that counsel was actually aware of the witness’s existence or had a
duty to know of the witness. Id. “Further, ineffectiveness for failing to call
-8-
J-S68022-14
a witness will not be found where a defendant fails to provide affidavits from
the alleged witnesses indicating availability and willingness to cooperate with
the defense.” Commonwealth v. O’Bidos, 849 A.2d 243, 249
(Pa.Super.2004).
Instantly, in a court-conducted colloquy, Appellant testified that he
had discussed potential witnesses with counsel and decided not to call any
additional defense witnesses. Accordingly, Appellant’s first claim of
ineffective assistance of counsel lacks merit.
In his second issue, Appellant argues that his counsel was ineffective
for entering into an agreement with the Commonwealth to permit the
testimony of a detective for the purpose of motive. Despite Appellant’s
contention that this was an agreement between his counsel and the
Commonwealth, the detective’s testimony was admitted as a result of an
evidentiary ruling after Appellant’s motion in limine. Thus, Appellant’s
second claim of ineffective assistance of counsel lacks merit.
In his third issue, Appellant claims his trial counsel was ineffective for
stipulating to expert testimony because cross-examination of these
witnesses could have undermined prior eyewitness testimony. Specifically,
Appellant suggests that testimony regarding slight variances in the kind of
top Appellant was wearing during the commission of the crime would provide
the basis for misidentification. Unfortunately for Appellant, all of the
-9-
J-S68022-14
eyewitnesses testified that Appellant was wearing a brown top, and his hope
of revealing a substantive inconsistency is without a factual basis.
In his fourth issue, Appellant argues his trial counsel was ineffective
for failing to request a “reliability hearing” for the Commonwealth’s allegedly
paid witnesses. Because there is no evidence to support Appellant’s
contention that the Commonwealth paid its witnesses and there is no such
thing as a “reliability hearing,” Appellant’s fourth issue is without merit.
In Appellant’s fifth issue, he alleges his counsel was ineffective for
failing to object to certain eyewitness testimony which Appellant claims was
more prejudicial than probative because the testimony introduced bad acts
into evidence. Despite Appellant’s contention, the Commonwealth did not
elicit any prior bad acts testimony from any eyewitnesses. Therefore, this
issue lacks merit.
Because all of Appellant’s ineffective assistance of counsel claims lack
merit, we need not address the other prongs of the Pierce test. See
Fitzgerald, supra.
In his sixth issue, Appellant argues the Commonwealth committed
prosecutorial misconduct by presenting the mendacious testimony of
eyewitness Christopher Leon. Appellant claims the prosecutor presented Mr.
Leon’s testimony to harass Appellant, and concludes that he is entitled to a
new trial. We disagree.
- 10 -
J-S68022-14
Claims based on prosecutorial misconduct are not cognizable under the
PCRA. 42 Pa.C.S. § 9543. Thus, we will not address this issue.
After a thorough review of the record, the briefs of the parties and the
applicable law, we conclude the PCRA court properly denied Appellant PCRA
relief and properly granted counsel’s petition to withdraw from
representation of Appellant. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
- 11 -