Com. v. Velez, J.

J-S47010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JORGE VELEZ
Appellant No. 695 EDA 2013
Appeal from the PCRA Order March 1, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0400011-2005
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 26, 2014
Appellant, Jorge Velez, appeals from the March 1, 2013 order denying
his first counseled petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. § 9541-9546.1 After careful review, we affirm.
We summarize the relevant factual and procedural history of this case
Commonwealth v. Velez, 961 A.2d 1285 (Pa. Super. 2008) (unpublished
memorandum at 1), appeal denied, 972 A.2d 522 (Pa. 2009). Gonzalez
resisted this attempt and gunfire ensued. Id. Appellant and two of his
cohorts, brothers Jose and Juan Alicia, were all shot. Id. Jose Alicia was
____________________________________________
1
The Commonwealth has not filed an appellate brief.
J-S47010-14
fatally wounded. Id. Two teenagers, who were inside of the barbershop at
the time that the shooting commenced, were also injured. Id.At trial, the surviving brother[, Juan Alicia,] testified
for the Commonwealth, incriminating Appellant. One
of the teenagers identified Appellant as the
ringleader [of the abduction attempt]. Appellant
testified he only shot in self-defense. A bystander
Gonzale[z], wanted on unrelated charges, failed to
appear at trial.
Id. at 1-2.
Following a four-day jury trial, Appellant was convicted of three counts
of aggravated assault and one count each of second-degree murder,
robbery, attempted kidnapping, criminal conspiracy, and possessing an
instrument of crime.2 On December 7, 2006, the trial court imposed on
Appellant a mandatory sentence of life imprisonment.3 See 18 Pa.C.S.A.
§
Appellant filed a timely notice of appeal on January 3, 2007. On
August 20, 2008, we affirmed the underlying judgment of sentence. See
Velez, supra. On September 18, 2008, Appellant filed a petition for
____________________________________________
2
18 Pa.C.S.A. §§ 2702, 2502(b), 3701, 901 (to commit 2901), 903, and
907, respectively.
3
the mandatory sentence of life imprisonment.
-2-
J-S47010-14
allowance of appeal with our Supreme Court, which was denied on May 28,
2009. See Commonwealth v. Velez, 972 A.2d 522 (Pa. 2009) (per
curiam).
Appellant filed the instant PCRA petition on October 22, 2009. Court-
appointed counsel filed an amended PCRA petition on July 1, 2011. On April
30, 2012, the PCRA court held an evidentiary hearing, at which time
See N.T.,
.
On March 4, 2013, Appellant filed a timely notice of appeal.4
On appeal, Appellant presents the following issue for our review.
[1.] Is [A]ppellant entitled to post-conviction relief
in the form of a new trial as a result of the
ineffectiveness of trial counsel for failing to
request the trial court to instruct the jury as to
self-defense?
We begin by noting our well-settled standard and scope of review.
w
Commonwealth v. Edmiston, 65 A.3d
339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v.
Pennsylvania [Our] scope of review is limited to
____________________________________________
4
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-3-
J-S47010-14
the findings of the PCRA court and the evidence of record, viewed in the light
Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted). A
Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. Super. 2014) (citation
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted)
(Spotz I). Yet, when the
apply a de novo standard of review. Id.In order to be eligible for relief under the PCRA, a petitioner must
plead and prove, by a preponderance of the evidence, that his conviction or
sentence arose from one or more of the errors listed within Section
9543(a)(2).
in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
Id. § 9543(a)(2)(ii). Further, to raise a meritorious
PCRA claim, the issue must be neither previously litigated nor waived. Id.
§ 9543(a)(3).
-4-
J-S47010-14
Herein, Appellant alleges that he received ineffective assistance of
reviewing a claim of ineffective assistance of counsel we apply the following
test, first articulated by our Supreme Court in Commonwealth v. Pierce,
527 A.2d 973 (Pa. 1987) (adopting the ineffectiveness standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984)).
When considering such a claim, courts
presume that counsel was effective, and place upon
the appellant the burden of proving otherwise.
Counsel cannot be found ineffective for failure to
assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
him.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). It is well settled that f]ailure to
establish any prong of [Pierce -prong] test will defeat an
Commonwealth v. Birdsong, 24 A.3d 319, 330
(Pa. 2011).
Pursuant to the first prong of the Pierce
merit where the factual averments, if accurate, could establish cause for
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013)
(en banc) (citation and quotation marks omitted), appeal denied, ---A.3d---,
2014 Pa. LEXIS 1428 (Pa. 2014). Whether the factual allegations raised by
-5-
J-S47010-14
a petitioner amount to arguable merit is a legal conclusion subject to de
novo review. Id.; see also Spotz I, supra.
With regard to the second, reasonable basis prong, we do not
question whether there were other more logical courses of action which
Commonwealth v. Chmiel, 30 A.3d
1111, 1127 (Pa. 2011) (citation and internal quotation marks omitted).
Commonwealth v.
Philitin
attorney performance requires that every effort be made to eliminate the
distorting effects of
Commonwealth v. Carson, 913 A.2d 220, 226-227 (Pa.
2006), cert. denied, Carson v. Pennsylvania, 552 U.S. 954 (2007), citing
Strickland, supra at 689.
of the
Michaud, supra (citation omitted).
Stewart, supra (citation and quotation marks omitted). Our
Supreme Court ha
-6-
J-S47010-14
of the proceedings [pursuant to the third prong of the Pierce test], the claim
may be dismissed on that basis alone and the court need not first determine
Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007); accord
Commonwealth v. Luster, 71 A.3d 1029, 1039-1040 (Pa. Super. 2013) (en
banc) (internal quotation marks omitted), appeal denied, 71 A.3d 1029 (Pa.
2013).
Instantly, Appellant claims that trial counsel rendered him ineffective
assistance by failing to request the trial court to instruct the jury on self-
premised on the theory that [A]ppellant was part of
a group that entered the barbershop in an attempt to
rob and/or kidnap [] Gonzalez. [A]ppellant
presented witnesses at trial in an attempt to prove
that he was not involved in the attempt to
rob/kidnap Gonzalez, but just happened to be in the
barbershop at the time of the incident.
[A]ppellant testified at trial that, after being
shot, he fired his weapon in self-defense because he
was frightened. One of his bullets struck [one of the
[trial counsel also] noted that [A]ppellant claimed
that he fired his weapon in self-defense after being
shot.
Id. Accordingly, Appellant asserts that his self-defense was at issue in the
-defense jury instruction
amounted to ineffective assistance of counsel. Id.-7-
J-S47010-14
It is well-settled that court should instruct the jury on the law
applicable to the facts of the case before it and should charge only on those
points and issues which arise out of the evidence and arguments presented."
Commonwealth v. Mayfield, 585 A.2d 1069, 1075 (citations omitted) (Pa.
Super. 1991) (en banc
a new trial only where the charge permitted a finding of guilt without
requiring the Commonwealth to establish the critical elements of the crimes
charged beyond a Commonwealth v. Hansley, 24
A.3d 410, 420 (Pa. Super. 2011), appeal denied, 32 A.2d 1275 (Pa. 2011),
quoting Commonwealth v. Wayne, 720 A.2d 456, 465 (Pa. 1998), cert.
denied, 528 U.S. 834 (1999).
The theory of self-defense is codified in Section 505 of the Crimes
Code, 18 Pa.C.S.A. §§ 101-
toward another person is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting himself against the
use
self-protection. Id.
under the circumstances in which it is used, is readily capable of causing
Id. at § 501. Specifically, the use of deadly
-8-
J-S47010-14
causing death or serious bodily injury, provoked the use of force against
Id. at § 505(b)(2)(i).
Before the trial court instructs a jury on self-defense, the trial judge
must initially determine if the defendant has established a valid claim for the
defense as a matter of law. Mayfield, supra at 1070. The following three
elements comprise a valid claim of self-defense.
[(1) T]he slayer was free from fault in provoking or
continuing the difficulty which resulted in the
he was in imminent danger of death or great bodily
harm, and that there was a necessity to use such
force in order to save himself therefrom; and [(3)
T]he slayer did not violate any duty to retreat or to
avoid the danger.
Id. at 1071, quoting Commonwealth v. Black, 376 A.2d 627, 630 (Pa.
1977) (citations omitted); see also
evidence from whatever source that will support these three elements[,]
then[,] the decision as to whether the claim is a valid one is left to the jury
Mayfield, supra; accord Commonwealth v. Torres, 766 A.2d 342, 345
(Pa. 2001).
ineffectiveness claim did not merit post collateral relief. PCRA Court
Opinion, 3/6/14, at 4-6. Specifically, the PCRA court concluded that a self-
-9-
J-S47010-14
the gunfire th
plan was hatched, entered the barbershop with the co-conspirators, was
Id. at 5. The PCRA court also reasoned that such a charge was not
inference that [he] shot his gun because he reasonably believed his life to be
in danger[ Id. at 5-6. Moreover, the PCRA court concluded trial counsel
credibly testified that he had a reasonable basis for his actions. Id. at 4-5.
Specifically, Attorney Kauffman testified that he elected not to seek an
instruction on self-defense because
request frivolous. Id. at 5; N.T., 4/30/12, at 18. Therefore, the PCRA court
err in denying Appellant post collateral relief because trial counsel had a
reasonable basis for his actions. During the underlying PCRA hearing, trial
counsel testified that he initially intended to request a self-defense
instruction because he believed Appellant to be an innocent bystander. N.T.,
4/30/12, at 8, 13-17. Specifically, Appellant relayed to trial counsel that he
did not know the Alicia brothers, that he entered the barbershop after the
incident began, and that he was forced to the back of the shop by the
brothers. Id. at 8, 11-12, 18-19. However, Appellant admitted to counsel,
- 10 -
J-S47010-14
a few days prior to trial, that he knew Juan Alicia and spent time with his
family. Id. at 9-10; N.T., 6/5/06, at 105-106. During trial, Appellant
testified that he was with Juan Alicia the night before the attempted
-110. Appellant further testified that: (1)
he was looking for Juan Alicia immediately prior to the incident; (2) he
arrived at the barbershop seconds before the men with masks entered; (3)
he proceeded to the back of the shop, where Gonzalez happened to be
seated, upon entering it; and (4) he shot his gun towards the wall once the
brawl began. Id. at 122-
made the strategic decision to not request the self-defense instruction as the
testimony established his involvement in the altercation. N.T., 4/30/12, at
22, 34. As trial counsel had a reasonable basis for his actions, the second
prong of Pierce See Chmiel, supra.
PCRA court did not err in denying Appellant PCRA relief. See Birdsong,
supra.
Order affirmed.
- 11 -
J-S47010-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
- 12 -