Com. v. Colon-Plaza, H.

J-S36007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HECTOR COLON-PLAZA :
:
Appellant : No. 1415 MDA 2018
Appeal from the PCRA Order Entered July 26, 2018
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002452-2014
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 07, 2019
Appellant, Hector Colon-Plaza, challenges the order entered in the
Lancaster County Court of Common Pleas, denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. He alleges trial counsel rendered ineffective assistance by failing to
object to the Commonwealth’s reference to Appellant’s right to remain silent.
We affirm.
A previous panel of this Court recounted the facts and procedural history
of this case:
In 2010, Appellant pled guilty to two counts of indecent assault of
a minor and received two years’ probation, which he completed.
On April 17, 2014, the Pennsylvania Office of Attorney General
(“OAG”) obtained a search warrant for Appellant’s residence on
evidence that OAG law enforcement software enabling agents to
detect the location of computers offering child pornography for
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 Retired Senior Judge assigned to the Superior Court.
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download had twice during a four-month period downloaded
videos and images of child pornography offered from an internet-
based, peer-to-peer file-sharing program in use at Appellant’s
residence. Pursuant to a court order, Comcast Cable
Communications supplied account information naming Appellant
as the wireless internet subscriber. Authorities further determined
that wireless internet access from this address was locked and
required a password.
Appellant shared the residence with his girlfriend, Angela
Gonzalez, and she was home when authorities executed the
search warrant. OAG agents confiscated a non-functioning digital
tablet, three cell phones, and two laptop computers, one of which
was stored in a hallway closet. It was this HP laptop, alone, which
contained an Ares file-sharing program, and within this program
were files containing the two videos and two images of child
pornography captured by the OAG computer. Further examination
of the laptop disclosed a username of “HECTOR,” a most recent
log-on under this username of April 16, 2014, just one day before
service of the warrant, and placement of the child pornography
files in a file path under this username. N.T. Trial, 3/3/15, at 205–
08.
OAG agents obtained Appellant’s work address from Ms. Gonzalez
and interviewed him at his office after advising him of his Miranda
rights, which he temporarily waived. In his recorded statement,
Appellant admitted that he and Ms. Gonzalez kept two computers
and one digital tablet in the residence and knew each other’s
passwords. He denied recent use of the HP laptop computer stored
in the hall closet, although he admitted to knowing its password
and using it in the past to share music and video files.
Authorities arrested Appellant and charged him with two counts of
disseminating child pornography in addition to the charges
referenced above. On March 4, 2015, a jury found Appellant not
guilty of disseminating child pornography but guilty on all counts
of possession of child pornography and criminal use of
communication facilities. Prior to sentencing, the Commonwealth
notified Appellant that it would seek a mandatory minimum
sentence of 25 years under [42 Pa.C.S.A. § 9718.2,] a recidivist
statute addressing sexual offenders. At Appellant’s sentencing
hearing, the court noted that a Sexual Offenders Assessment
Board determined Appellant was not a sexually violent predator.
Nevertheless, finding Appellant was a recidivist sex offender as
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contemplated under the mandatory minimum sentencing scheme,
the court imposed a mandatory 25 to 50–year term of
incarceration.
Commonwealth v. Colon-Plaza, 136 A.3d 521, 524-525 (Pa. Super. 2016)
(footnotes omitted).
This Court affirmed the judgment of sentence, and Appellant did not file
a petition for allowance of appeal to the Pennsylvania Supreme Court. Instead,
he filed the instant PCRA petition, alleging the ineffectiveness of trial counsel.
Appellant then retained counsel, who filed an amended petition.
The PCRA court held an evidentiary hearing. At the conclusion of the
hearing, the PCRA court ordered the parties to file briefs. Ultimately, the court
denied relief, and Appellant filed a timely notice of appeal. This matter is now
properly before us.
Appellant’s sole issue on appeal challenges the effectiveness of trial
counsel. However, before we are able to address it, we must determine
whether the petition was timely filed.
We begin by addressing the timeliness of Appellant’s petition. A PCRA
petition is timely if it is filed within one year of the date the petitioner’s
judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). “A
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super. 2014)
(citation omitted).
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Here, a previous panel of this Court affirmed Appellant’s judgment of
sentence. He did not file a petition for allowance of appeal to the Pennsylvania
Supreme Court. His judgment of sentence became final on March 26, 2016,
thirty days after this Court issued its opinion, when his time for filing a petition
for allowance of appeal with the Pennsylvania Supreme Court expired. See
Pa.R.A.P. 1113(a). Appellant’s PCRA petition, filed on February 22, 2017, is
therefore timely.
We proceed to the merits of Appellant’s claim. “Our standard of review
for issues arising from the denial of PCRA relief is well-settled. We must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super.
2018) (citation omitted). In doing so, we read the record in the light most
favorable to the prevailing party. See Commonwealth v. Ford, 44 A.3d
1190, 1194 (Pa. Super. 2012). If this review reveals support for the PCRA
court’s credibility determinations and other factual findings, we may not
disturb them. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014). We, however, afford no deference to the PCRA court’s legal
conclusions. See id.Appellant’s sole argument on appeal is that the PCRA court erred in
concluding he had failed to establish that his trial counsel had been ineffective
for failing to object to the presentation of his recorded statement to the jury.
We presume counsel’s effectiveness, and an appellant bears the burden of
proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965 (Pa.
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Super. 2017). “In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the evidence,
ineffective assistance of counsel which so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” Presley, 193 A.3d at 442 (citation omitted).
To establish ineffectiveness of counsel, a PCRA petitioner must plead
and prove: his underlying legal claim has arguable merit; counsel’s actions
lacked any reasonable basis; and counsel’s actions prejudiced him. See
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to satisfy
any prong of the ineffectiveness test requires dismissal of the claim. See
Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).
“Arguable merit exists when the factual statements are accurate and could
establish cause for relief. Whether the facts rise to the level of arguable merit
is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 540
(Pa. Super. 2015) (citations and internal quotation marks omitted). “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. Spotz, 84 A.3d 294, 315 (Pa. 2014)
(citation and quotation marks omitted).
It is undisputed that the Commonwealth introduced at trial a recorded
statement and accompanying transcript from Appellant’s initial interview with
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investigators. Further, it is undisputed Appellant eventually invoked his right
to remain silent, which ended the interview.
Appellant argues that, because the Commonwealth is not permitted to
use a defendant’s assertion of his right to remain silent to prove consciousness
of guilt, trial counsel should have objected to the introduction of the statement
and transcripts. Appellant contends counsel had no reasonable basis for his
failure to object, and that the introduction of this evidence prejudiced the jury
against him. He concludes he is entitled to a new trial based on counsel’s
ineffectiveness. We conclude the PCRA court did not err in finding Appellant
had failed to establish arguable merit or prejudice and therefore disagree.
The United States and Pennsylvania Constitutions protect a defendant’s
right to silence, including before arrest. See U.S. Const. amend. V; Pa. Const.
art. I § 9; Commonwealth v. Guess, 53 A.3d 895, 903 (Pa. Super. 2012).
“It is axiomatic that a prosecutor may not comment adversely on a
defendant’s refusal to testify with respect to the charges against him since
such commentary would compromise the defendant’s privilege against self-
incrimination and the defendant’s constitutional presumption of innocence.”
Commonwealth v. Molina, 33 A.3d 51, 57 (Pa. Super. 2011) (en banc)
(citation omitted).
However, this Court has declined to find a “prima facie bar against any
mention of a defendant’s silence,” where the reference is not deemed
exploitative. Commonwealth v. Adams, 39 A.3d 310, 318 (Pa. Super. 2012)
(emphasis in original; citation omitted). As such, not all allusions to a
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defendant’s silence constitute a violation of his Fifth Amendment rights, such
that counsel could be deemed ineffective by failing to object. See Guess, 53
A.3d at 905. Our Pennsylvania Supreme Court has held that “[e]ven an explicit
reference to silence is not reversible error where it occurs in a context not
likely to suggest to the jury that silence is the equivalent of a tacit admission
of guilt.” Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005)
(citation omitted). Where the reference to the defendant’s silence is used to
establish context, rather than employed in a way likely to create an inference
of an admission of guilt, the defendant cannot prove the prejudice prong of
the ineffectiveness test. See id.At trial, the Commonwealth referenced Appellant’s interview with police
in its opening statement:
As the questioning progressed, they ask him, what kind of things
were you downloading using the Ares network? And finally he
says, well, I was looking at movies. They told him -- they said,
well, what kind of movies? You're not going to shock us in any
way. It was at that point he decided I'm not going to answer any
more questions and he stopped. And they stopped questioning
him. So the interview stops at that point and the defendant is
charged.
N.T. Trial, 3/2/15, at 76.
Appellant’s counsel objected at sidebar, claiming the Commonwealth
had impermissibly raised the issue of his client “lawyering up” during the
interview. Id., at 91. The court rejected that assertion, stating the
Commonwealth had not referred to Appellant asking for a lawyer, and only
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referenced Appellant’s decision to stop speaking with investigators because it
clarified why the interview had concluded. See id. The court explained:
What are they supposed to say at that point? If [Appellant] hadn’t
said anything [to the investigators] period, then I would agree
with you, to mention [Appellant’s silence] would be inappropriate.
But where he starts talking [to] them, they ask him a question
and he doesn’t want to answer, what are they supposed to say at
that point? I don’t see that there’s anything inappropriate about
that.
Id.
The Commonwealth then introduced testimony from Agent Nicole
Laudeman. Laudeman testified, inter alia, that after investigation into the
dissemination of child pornography online, she determined child pornography
was being shared from a device linked to Appellant’s internet subscription
account. See N.T. Trial, 3/3/15, at 120.
Laudeman and her partner approached Appellant, who agreed to be
interviewed for their investigation. See id., at 131. They read him his
Miranda1 rights, and he answered questions for them before eventually
refusing to continue. See id. The Commonwealth introduced that interview
into evidence. See id., at 136. The relevant portion of the conversation
proceeded as follows:
[Investigator]: [] OK what did you use Ares for?
[Appellant]:Um watch videos
[Investigator]: What kind of videos did you watch?
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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[Appellant]: Before um
[Investigator]: You’re not going to shock us so just be honest[,]
what videos did you look at[?]
[Appellant] Well I’m not to say nothing here [sic]. I’m going to
stop the conversation.
[Investigator]: You’re going to stop the conversation?
[Appellant]: Uh huh
Commonwealth’s Exhibit 10, at 7.
Appellant went on to explicitly ask for an attorney; that request was
excised from the recording and transcript of the interview presented to the
jury. Appellant was arrested thereafter. Appellant’s counsel did not object to
the entry of the redacted interview into evidence.
The PCRA court held an evidentiary hearing, and trial counsel testified.
He stated he objected to the portion of the Commonwealth’s opening
statement that referenced the interview because he believed it could be
prejudicial to Appellant. See N.T. PCRA Hearing, 12/18/17, at 9. However, he
testified that after the adverse ruling, he deemed the issue meritless and did
not object to the introduction of the interview into evidence. See id., at 10.
He also declined to raise the issue on direct appeal because he believed
Appellant did not actually suffer any prejudice. See id., at 15. Additionally,
counsel testified that while the transcript of Appellant’s initial meeting with
investigators was introduced as an exhibit at trial, the portion where Appellant
explicitly asked for a lawyer was redacted from the transcript. See id., at 27.
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Here, we find the brief reference to Appellant ending the interview was
appropriately used to contextualize the police investigation. Appellant
knowingly and voluntarily waived that right and cooperated with police in a
highly relevant interview about illicit materials on his computer before deciding
to halt the discussion. At no point in the Commonwealth’s opening statement
or in the recording and transcript presented to the jury was Appellant’s
decision to stop the interview proffered as substantive evidence of his guilt.
Neither the prosecution nor any witness commented on Appellant’s choice to
invoke this right. Instead, the Commonwealth succinctly recapitulated the
facts of the interview as part of the investigation undertaken by Agent
Laudeman. We do not find that these minor references to his silence suggest
Appellant’s tacit admission of guilt. The PCRA court did not err or abuse its
discretion in concluding Appellant had failed to establish that an objection to
the evidence would have been sustained.
Even if counsel had specifically and successfully objected to any mention
of Appellant’s right to remain silent,2 Appellant fails to demonstrate how the
outcome of trial would have been different. As the PCRA court describes:
Not only was it established that [Appellant] was the internet
subscriber, the named profile user of the laptop and one of just
two residents living at the address, he also admitted to having
access to the laptop, to knowing its secreted location within the
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2 While trial counsel did object to the Commonwealth’s opening statement on
the grounds that it may have been prejudicial to Appellant, counsel’s objection
was framed as opposition to the Commonwealth referring to Appellant
obtaining a lawyer. Counsel was overruled, as the Commonwealth made no
such reference.
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closet, to knowing its password and, most significantly, to having
used the file-sharing program in the past to watch videos.
Moreover, only two laptops were discovered within the residence,
along with a nonfunctional tablet and some cell phones.
[Appellant] initially acknowledged in his interview that he and his
girlfriend each had a computer in the residence. He also stated
that his was password protected, that he used it to pay bills and
watch YouTube videos and that he had never downloaded a
filesharing program onto his computer. When he was confronted
with the fact that such a program was discovered on a computer
within the home, [Appellant] suddenly said that there was a third
computer within the residence that was old and that he did not
use anymore. This was the only computer within the residence
found to contain child pornography and it revealed a three-year
history in which child pornography was frequently sought,
downloaded and viewed under [Appellant’s] username and
password. The properly admitted and uncontradicted evidence of
guilt was so overwhelming in this case, compared to any
insignificant prejudicial effect the reference to [Appellant’s]
request for the interview to end may have had, that the admission
of such could not have contributed to the verdict.
PCRA Court Opinion, filed 7/25/18, at 6-7.
We agree with the court’s assessment. Accordingly, we find Appellant is
due no relief on this issue, and we affirm the denial of his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2019
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