Com. v. Santiago, M.

J-S45016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCELINO SANTIAGO
Appellant No. 564 EDA 2013
Appeal from the PCRA Order of January 14, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0006429-2011
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 20, 2014
denying his petition for relief under the Post-
42 Pa.C.S. §§ 9541-46. We affirm.
The PCRA court aptly set forth the facts and procedural history of this
case as follows:
On April 5, 2011[,] at around 3:20 a.m., Philadelphia Police
Officer Ken Fazio, along with his partner Officer Rabinovitch,
e of
[sic] 3000 Kensington Avenue, in Philadelphia, Pennsylvania.
Fazio observed a black male lying on the ground with the
[appellant], Marcelino Santiago on top of him. N.T. 2/15/2012,
at 10. [Santiago] was holding this black male, Paris Riley, down
with one hand and repeatedly thrusting a knife he held in his
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S45016-14
-10. At this
time, Officers Fazio and Rabinovitch exited their vehicle and
ordered [Santiago] to drop his knife. N.T. 2/15/2012, at 11.
[Santiago] then looked in the direction of the [o]fficers and
started to walk in the opposite direction. Id. The [o]fficers
eventually forced [Santiago] to the ground and found the knife
underneath [Santiago]. Id. Officer Fazio testified that the knife
was about nine inches in length with a four[-]inch blade. Id.
paperwork
person. N.T. 2/15/2012, at 13. Mr. Riley suffered a cut to his
finger but refused medical treatment. N.T. 2/15/2012, at 12.
[Santiago] was arrested and charged with aggravated assault,[1]
robbery,[2] theft by unlawful taking,[3] receiving stolen
property,[4] possession of an instrument of crime,[5] simple
assault,[6] and recklessly endangering another person.[7]
-2 (citations modified).
On February 15, 2012, Santiago waived his right to a jury trial after an
on-the-record colloquy with the trial court. N.T., 2/15/2012, at 3-7. After a
brief bench trial, the trial court found Santiago guilty of all the charges filed
against him. N.T., 2/15/2012, at 25. On July 10, 2012, the trial court
sentenced Santiago to eighteen to thirty-
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1
18 Pa.C.S. § 2702(a).
2
18 Pa.C.S. § 3701(a)(1)(ii).
3
18 Pa.C.S. § 3921(a).
4
18 Pa.C.S. § 3925(a).
5
18 Pa.C.S. § 907(a).
6
18 Pa.C.S. § 2701(a).
7
18 Pa.C.S. § 2705.
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aggravated assault conviction, and a concurrent eighteen to thirty-six
, at 16-18. The
Id. at 19. Order of Sentence,
July 10, 2012.
Santiago did not file any post-sentence motions, nor did he file a direct
appeal. On August 30, 2012, Santiago filed a timely counseled PCRA
petition in which he asserted that his trial counsel, Joseph Kelly, was
ineffective for failing to inform Santiago of his right to testify at his own trial.
PCRA Petition, 8/30/2012, at ¶7 (unpaginated). The PCRA court held a
PCRA Petition. N.T., 1/14/2013 at 5.
On January 30, 2013, Santiago filed a timely notice of appeal. On
March 12, 2013, Santiago filed a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b).8 In his Rule 1925(b) statement,
self-defense
claim and did not advise Santiago about his right to testify in court. Concise
Statement, 3/12/2013, at ¶1 (unpaginated).
____________________________________________
8
It does not appear from the certified record that the PCRA court
specifically ordered a 1925(b) statement.
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The PCRA court issued its Pa.R.A.P. 1925(a) opinion on November 15,
2013. The PCRA court first stated that Santiago could not prove that his
counsel was ineffective because it was not unreasonable for counsel to
conclude that keeping Santiago off of the stand was an effective strategy.
P.C.O. at 4-5. Furthermore, the PCRA court stated that Santiago could not
prove ineff
events incredible, and because Santiago would not have been able to
establish a credible self-
testimony. P.C.O. at 5-6.
Santiago raises the following issue for our review.
Was trial counsel ineffective in failing to inform [Santiago] of his
right to testify and allow [Santiago] to testify on his own behalf
to assert a claim of self[-]defense?
Brief of Santiago at 4.
neffective counsel claim, we note that
-conviction
supported by the evidence of record and whether it is free of le
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing
Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where,
as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has stated:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
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which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
was deficient and that the deficiency prejudiced the petitioner. A
there is a reasonable probability th
unprofessional errors, the result of the proceeding would have
posits that: (1) the underlying legal issue has arguable merit;
reasonable basis; and
omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
any particular order of priority; instead, if a claim fails under any necessary
element of the [ineffectiveness] test, the court may proceed to that element
Commonwealth v. Lambert, 797 A.2d 232, 243 n.9 (Pa. 2001).
supported by the record, are binding upon this Court. Commonwealth v.
Johnson, 966 A.2d 523, 532 (Pa. 2009).
After a review of the transcript of S
that Santiago has not met his burden of demonstrating that Attorney Kelly
was ineffective as his counsel. Santiago presently argues that Attorney Kelly
never informed Santiago of his right to testify, and that if he had, Santiago
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would have raised a self-defense claim. In considering an ineffectiveness
claim based upon the decision to testify, our Supreme Court has stated:
ultimately to be made by the defendant after full consultation
with counsel. Commonwealth v. Uderra, 706 A.2d 334
(1998); Commonwealth v. Bazabe, 590 A.2d 1298 (Pa. Super.
1991); Commonwealth v. Fowler, 523 A.2d 784 (Pa. Super.
1987). In order to sustain a claim that counsel was ineffective
for failing to advise the appellant of his rights in this regard, the
appellant must demonstrate either that counsel interfered with
his right to testify, or that counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent decision to
testify on his own behalf. Id.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations
t to
other than what he had written in the motion for post-conviction relief. N.T.
1/14/2013, at 4.
However, even if Santiago were to prove that Attorney Kelly never
discussed Sa
basis for not doing so, Santiago is not entitled to relief because we discover
no actual PCRA prejudice that befell Santiago in the event that he could
establish the first two prongs of the ineffective assistance of counsel test.
As previously noted, Santiago waived his right to a jury and appeared before
Judge Sean F. Kennedy for a bench trial. N.T., 2/15/2012, at 3-7. Judge
nd
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his account of the facts. Although Santiago claimed that he would attempt
to establish a self-defense narrative if called to the stand, Judge Kennedy
stated in his opinion that he would not have credited this sequence of
events. Judge Kennedy pointed to the fact that he found Officer Fazio
was inconsistent. P.C.O. at 6. Furthermore, Judge Kennedy noted
independent evidence that would tend to implicate Santiago, such as cuts on
Id. Because Judge Kennedy would not have credited
suffered no prejudice. Because Santiago cannot satisfy this element of the
ineffective assistance of counsel claim, his petition fails. Lambert, 797 A.2d
at 243 n.9 (Pa. 2001).
Order affirmed.
Fitzgerald, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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