Com. v. Mateo, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELVIN RAFAEL MATEO :
:
Appellant : No. 1890 MDA 2019
Appeal from the PCRA Order Entered October 29, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005730-2015
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MAY 12, 2022
Elvin Rafael Mateo (Appellant) appeals pro se from the order entered in
the York County Court of Common Pleas, dismissing his first, timely Post
Conviction Relief Act1 (PCRA) petition.2 Appellant was convicted by a jury of
first-degree murder, attempted murder, conspiracy,3 and related offenses.
Appellant now raises various claims that PCRA counsel, whom the PCRA court
1 42 Pa.C.S. §§ 9541-9546.
2 On February 10, 2021, this panel issued a memorandum allowing Appellant
to file an amended brief, after he cited limited or no access to the prison library
due to the COVID-19 pandemic. Thereafter, we granted him five extensions
of time, as well as one extension of time to the Commonwealth to file a
responsive brief.
318 Pa.C.S. §§ 2502(a), 901(a), 903(a), respectively. As we discuss infra,
Appellant was tried jointly with Durell Cotton, Jr. (Co-Defendant).
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permitted to withdraw under Turner/Finley,4 was ineffective for not raising
various claims of trial counsel’s ineffective assistance. We affirm.
I. Facts & Procedural History
The Commonwealth alleged that around 10:24 p.m. on October 15,
2013, Appellant and Durrell Herman Cotton, Jr. (Co-Defendant)5 were in a
maroon SUV vehicle when they fired gunshots into an occupied gold Buick
Rendezvous vehicle at 128 Jefferson Avenue, York City. The rear seat
passenger of the Buick, Jordan Breeland, was shot in the chest and died at
the scene. The driver, Davon Brown, sustained “a gunshot to his left hand
and a small wound on his right wrist” and survived. Trial Ct. Op., 1/23/17, at
3. The front seat passenger, Timiere Crosby, was not injured. See id. at 3.
Shortly after 1:40 a.m. that same night, there was a report of shots
fired “in the area of Belvidere and Market Streets.” Trial Ct. Op., 1/23/17, at
4. At approximately 2:55 a.m., Pennsylvania State Police Trooper Shawn
Panchik “located two possible suspects,” for the shooting of Breeland and
Brown, in “the area of Hartley and Philadelphia Street[s].” Id. The suspects,
both wearing black jackets,
were seen throwing handguns as they fled from police. [They]
were apprehended . . . and both handguns were recovered. . . .
4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5 At the time of the shooting, Co-Defendant was 17 years old.
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Dashboard surveillance [showed that Appellant] attempted to
dispose of a .357 Rossi handgun and [Co-Defendant] attempted
to dispose of a Smith and Wesson 10 mm handgun. [B]allistic
analysis [showed] that a bullet fragment recovered inside the
Buick Rendezvous originated from the .357 Rossi firearm.
Id. at 4-5. Additionally, gunshot residue was found on both Appellant’s and
Co-Defendant’s clothing and hands. Id. at 5.
Later that same day, October 16, 2013, Belinda Akers reported to the
Lower Windsor Police Department that the night before, she loaned her
vehicle, a maroon Mercury Mountaineer SUV, to a young black male. Trial Ct.
Op., 1/23/17, at 5-6.
[One] hour after the shooting [involving the Buick,] the male
called a friend of [Akers] and told her where [her maroon SUV]
was parked. [Akers] located her vehicle with the [rear window
shattered.]
Akers identified [Co-Defendant] from an eight . . . person
photo line-up as . . . the black male she loaned her SUV to on the
night of the murder.
Id. at 6 (paragraph break added).
Meanwhile, a witness to the shooting, Thomas Hoke, heard gunshots
and “observed a maroon or red [ ] SUV occupied by two black males [leave]
the area of the shooting at a high rate of speed heading towards Philadelphia
Street. One of the vehicle’s occupants was wearing a black jacket.” See Trial
Ct. Op., 1/23/17, at 5. When shown photographs of Akers’ SUV, Hoke said “it
appeared to be the same color and body type [as] the vehicle he observed
fleeing the scene immediately after the shooting.” Trial Ct. Op., 1/23/17, at
6.
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One year and nine months after the shooting, in July of 2015, police
interviewed Raymond Bruno-Carrasquillo. See Trial Ct. Op., 1/23/17, at 6;
N.T. Trial Vol. III, 5/18/16, at 430. He had known Appellant and Co-Defendant
almost his whole life, and in October of 2013, he was with them “[a]lmost
every day,” selling drugs together. N.T. Trial Vol. III, 5/18/16, at 407-08,
411.
Bruno-Carrasquillo was with [Co-Defendant] just prior to the
shooting and was with both defendants on later dates where
details of the murder were discussed. [Appellant] told Bruno-
Carrasquillo that they were “lurking” for targets from the Parkway
gang, [which the victims] Breeland and . . . Brown were allegedly
associated with. [Bruno-Carrasquillo explained that “lurking”
means “rid[ing] around looking for specific targets.”6]
[Appellant] told Bruno-Carrasquillo that they were in a SUV
that [Co-Defendant] “rented” from an addict on the night of the
alleged incident. [Appellant] further stated to Bruno-Carrasquillo
that they had come across a gold color SUV driven by . . . Brown
and [Appellant] had a .357 handgun while [Co-Defendant]
possessed a 10mm handgun. [Appellant] further related to
Bruno-Carrasquillo that he had fired into the driver’s and
passenger side of the vehicle. Additionally, [Appellant] said
that later that same evening police chased both defendants and
they attempted to throw away their guns.
Trial Ct. Op., 1/23/17, at 6-7 (paragraph break and emphasis added).
Both Appellant and Co-Defendant were charged with murder, attempted
murder, conspiracy, and related offenses. The charges proceeded to a joint,
multi-day trial against both defendants, commencing May 16, 2016. Appellant
was represented by James Robinson, Esquire (Trial Counsel). Bruno-
6 N.T. Trial Vol. III, 5/18/16, at 418.
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Carrasquillo testified as a Commonwealth witness and, pertinently, disclosed
he was facing criminal charges in five unrelated matters, hoped his testimony
would lead to leniency, but he was not given any promises by the
Commonwealth. N.T. Trial Vol. III, 5/18/16, at 408-11.
Neither Appellant nor Co-defendant testified or presented evidence. In
closing argument, Trial Counsel argued Appellant acted in self defense, on the
theory it was not known “who fired first.” N.T. Trial Vol. V, 5/20/16, at 769.
The jury found Appellant guilty of the first-degree murder of Breeland,
conspiracy to commit the first-degree murder of Breeland, attempted murder
of Brown, and aggravated assault of Brown.7 On August 29, 2016, the trial
court imposed the following sentences: a mandatory life sentence for first-
degree murder; a consecutive 20 to 40 years’ imprisonment for attempted
murder; and a concurrent 20 to 40 years’ imprisonment for conspiracy.
Still represented by Trial Counsel, Appellant took a direct appeal to this
Court, which affirmed the judgment of sentence on September 22, 2017.
Commonwealth v. Mateo, 1784 MDA 2016 (unpub. memo) (Pa. Super.
7 18 Pa.C.S. §§ 2502(a), 903, 901(a), and 2702(a)(1), respectively.
The jury found Co-Defendant guilty of the same offenses. On direct
appeal, this Court affirmed his judgment of sentence. Commonwealth v.
Cotton, 1843 MDA 2016 (unpub. memo) (Pa. Super. Oct. 10, 2017), appeal
denied, 771 MAL 2017 (Pa. May 8, 2018). Co-Defendant then filed a habeas
corpus petition as well as a PCRA petition, which were both denied, following
a hearing, on November 5, 2021. Co-Defendant’s appeal to this Court is
currently pending at Commonwealth v. Cotton, 1566 MDA 2021.
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Sept. 22, 2017), appeal denied, 700 MAL 2017 (Pa. March 9, 2018). The
Pennsylvania Supreme Court denied his petition for allowance of appeal on
March 9, 2018.
II. PCRA Petition
Appellant filed a pro se, timely PCRA petition on March 5, 2019, alleging,
inter alia: (1) Trial Counsel was ineffective for changing his trial defense from
a claim of innocence to self defense; (2) counsel was also ineffective for not
requesting severance of trial from Co-Defendant; (3) the trial court erred in
admitting Bruno-Carrasquillo’s “hearsay” testimony, where this witness “was
testifying for favorable consideration” in his own criminal matter, which is
“fraud upon the court[;]” and (4) the evidence was insufficient to support the
convictions. Appellant’s Petition for Post Conviction Relief Pursuant to 42
Pa.C.S. § 9541 seq., 3/5/19, at 2-4, 6.
The PCRA court appointed Aaron Holt, Esquire (PCRA Counsel) to
represent Appellant. On August 19, 2019, PCRA Counsel filed a
Turner/Finley “no merit” letter and petition to withdraw, averring Appellant’s
claims lacked merit. On October 9th, the PCRA court granted counsel’s
petition to withdraw, and issued Pa.R.Crim.P. 907 notice of intent to dismiss
the pro se PCRA petition without a hearing.
Appellant filed a timely pro se response, which, inter alia, presented new
claims of PCRA Counsel’s ineffectiveness, for alleged failure to raise various
claims of Trial Counsel’s ineffectiveness.
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On October 29, 2019, the PCRA court issued the underlying order
denying Appellant relief, along with an opinion. On November 8th, the court
filed a supplemental opinion, addressing the claims of PCRA Counsel’s
ineffectiveness. Appellant timely appealed and complied with the court’s order
to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. 8
III. Statement of Questions Involved
Appellant raises eight issues for our review:
1.) Whether PCRA Counsel provided ineffective assistance of
counsel before the PCRA court.
2.) Whether PCRA Counsel fell below that required standard [sic]
under Pennsylvania law.
3). Whether trial court erred [in] allowing the admission of
hearsay testimony.
4). Whether there [was] prosecutorial misconduct in allowing
testimony knowing to be false [sic].
5). Whether trial court erred [in] allowing insufficient evidence to
support the conviction.
6). Whether PCRA Counsel was ineffective for failing to raise Trial
Counsel’s ineffectiveness for changing Appellant’s claim from
actual innocence to self-defense.
8 The trial court’s Rule 1925(b) order, of November 25, 2019, directed
Appellant to file a concise statement within 21 days — or by Monday,
December 16th. Appellant’s statement was entered on the docket December
19th, three days thereafter. Nevertheless, the postage on Appellant’s
envelope is dated December 16th. We thus deem the statement timely filed
under the prisoner mailbox rule. See Commonwealth v. Chambers, 35
A.3d 34, 38 (Pa. Super. 2011) (“[I]n the interest of fairness, the prisoner
mailbox rule provides that a pro se prisoner’s document is deemed filed on
the date he delivers it to prison authorities for mailing.”).
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7). Whether Trial Counsel was ineffective [for] failing to object to
inflammatory remarks of the prosecutor during closing
arguments.
8). Whether Trial Counsel [was] ineffective [for] failing to argue
issue of sep[a]ration of trial of the defendants.
Appellant’s Brief at 6 (unpaginated).9
Appellant’s discussion does not follow the above same order, and
particular arguments for each issue are repeated throughout his brief.
Additionally, we observe various claims of trial court error and Trial Counsel’s
and PCRA Counsel’s ineffectiveness arise from the same underlying issue. For
ease of discussion, we address separately each underlying issue.
IV. Standard of Review & Claims of Ineffective Assistance
At this juncture we consider the relevant standard of review:
Our standard of review of the denial of a PCRA petition is
limited to examining whether the court’s determination is
supported by the evidence of record and free of legal error. This
Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Further, the
PCRA court’s credibility determinations are binding on this Court,
where there is record support for those determinations.
To prevail on a claim alleging counsel’s ineffectiveness under
the PCRA, [a petitioner] must demonstrate (1) that the underlying
claim is of arguable merit; (2) that counsel’s course of conduct
was without a reasonable basis designed to effectuate his client’s
interest; and (3) that he was prejudiced by counsel’s
ineffectiveness, i.e. there is a reasonable probability that but for
the act or omission in question the outcome of the proceedings
would have been different.
9 We treat the cover page of Appellant’s brief as page 1.
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Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citations
omitted).
V. Bradley & Claims of PCRA Counsel’s Ineffective Assistance
We first consider Appellant’s assertion that his claims of PCRA Counsel’s
ineffectiveness are properly before this Court, pursuant to the Pennsylvania
Supreme Court’s recent decision in Commonwealth v. Bradley, 261 A.3d
381 (Pa. 2021). See Appellant’s Brief at 11.
At the time of the Bradley decision, a PCRA petitioner could raise a
claim of PCRA counsel’s ineffectiveness only in a response to a Rule 907 notice
of intent to dismiss a petition without a hearing. Bradley, 261 A.3d at 397-
98, citing Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). The Bradley
Court expanded the manner in which a claim of PCRA counsel’s ineffectiveness
may be raised, by holding such claim may also be raised “at the first
opportunity to do so, even when on appeal.” See id. at 401.
Here, Appellant raised claims of PCRA counsel’s ineffectiveness in his
pro se response to the PCRA court’s Rule 907 notice. Accordingly, his claims
were properly raised under the already-existing case authority. Bradley,
which addressed ineffectiveness claims raised for the first time on appeal,
is not implicated.10
10Furthermore, whereas Appellant raised his pro se claims after his appointed
counsel was permitted to withdraw under Turner/Finley, the petitioner in
Bradley was represented by new PCRA counsel. See Bradley, 261 A.3d at
384. Amici in the Bradley appeal suggested that “in a Turner/Finley no-
merit situation, the PCRA court should have discretion to appoint new counsel
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VI. Severance of Trial from Co-Defendant
Appellant avers Trial Counsel was ineffective for not seeking, despite his
request, a severance of trial from Co-Defendant. In support, Appellant
advances the following arguments. Bruno-Carrasquillo, “the Commonwealth’s
star witness,” gave “hearsay testimony, in addition to a full admission that
he . . . had an open criminal case and was only testifying for favorable
consideration[.]” Appellant’s Brief at 11. Additionally, “The majority of the
evidence presented had nothing to do with [A]ppellant and [he] was
prejudiced by the admission of evidence that [was] attributed to his co-
defendants [sic].”11 Id. at 17. Appellant also avers PCRA Counsel was
ineffective for not raising this particular claim of Trial Counsel’s
ineffectiveness. Id. at 11, 17. No relief is due.
This Court has stated:
The decision on whether to grant a motion for severance rests
within the sound discretion of the trial court and will not be
disturbed absent a manifest abuse of discretion. Where
when appropriate, which, according to amici, PCRA courts do not currently
possess[.]” Id. at 401 n.16. The Supreme Court specifically declined to
address such situations: “As this appeal does not involve the distinct
Turner/Finley scenario, we save resolution of this question, including the
continued viability of the Pitts Rule 907 approach in this unique context, for
another day.” Id.
11 Appellant also argues: (1) “the shooters were both said to be ‘dark skinned’
African American Males[;]” (2) both “victims were seen shooting up a
neighborhood [where A]ppellant did not reside[;]” and (3) Appellant “was not
present when the shooting occurred in his neighborhood[.]” Appellant’s Brief
at 11. Appellant does not provide any further discussion, nor explanation how
these alleged facts support a claim of severance of trial.
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defendants are charged with conspiracy, there is a strong
preference for joint rather than separate trials. Separate trials of
co-defendants should be granted “only where the defenses of each
are antagonistic to the point where such individual differences are
irreconcilable and a joint trial would result in prejudice.”
Commonwealth v. Payne, 760 A.2d 400, 404 (Pa. Super. 2000) (citations
omitted).
In denying relief, the PCRA court found:
In the present case, the record reflects that all the charges
against both [Appellant] and [Co-Defendant] were identical and
arose from the same alleged incident. Severance would have
resulted in unnecessary repetition because many of the same
witnesses would testify and the evidence was essentially the same
for both [Appellant] and [Co-Defendant. Appellant] does not
provide any justification to warrant a separate trial[.] Therefore,
there would have been no merit in a motion for severance. A
reasonable attorney would not file a meritless motion. All three
prongs under [the] test for an allegation of ineffective assistance
of counsel fail . . .
PCRA Ct. Op., 10/28/19, at 6-7.
Appellant fails to address the PCRA court’s analysis. Furthermore, while
he repeatedly focuses on the witness Bruno-Carrasquillo, which we address in
fuller detail in the next section, the admission of his testimony, alone, would
not warrant severance. Contrary to Appellant’s summation of Bruno-
Carrasquillo’s trial testimony, the witness did directly implicate Appellant in
the shooting. Bruno-Carrasquillo testified to all of the following: he,
Appellant, and Co-Defendant, collectively, had a dispute with people from “the
Parkway side.” N.T. Trial Vol. III, 5/18/16, at 413. Prior to the shooting,
Appellant told the group he would “go out [to] Parkway and shoot anybody . . .
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associated with” them. Id. at 418. After the shooting, Appellant told Bruno-
Carrasquillo that he and Co-Defendant “were out lurking,” meaning “rid[ing]
around looking for specific targets,” and ran into Breeland and Brown, who
were in a gold SUV. Id. at 418, 424. Appellant “said he shot into the
driver’s side then shot into the passenger side.” Id. at 424 (emphasis
added).
We thus reject Appellant’s present claim, that “[t]he majority of the
evidence presented had nothing to do with” him, as patently meritless. See
Appellant’s Brief at 17. We agree with the PCRA court that Appellant has failed
to establish either Trial Counsel’s or PCRA Counsel’s ineffectiveness with
respect to a motion to sever trial. See Timchak, 69 A.3d at 769.
VII. Trial Testimony of Bruno-Carrasquillo
Next, Appellant avers the trial court erred by allowing hearsay testimony
by Bruno-Carrasquillo. As support, Appellant emphasizes Bruno-Carrasquillo
“admitted on open record that he had multiple outstanding charges and had
expectations of leniency and consideration from the District Attorney in
exchange for his testimony against [A]ppellant and [C]o-Defendant.”
Appellant’s Brief at 12.
We note Appellant’s second complaint — that Bruno-Carrasquillo was
testifying solely to gain favorable treatment with respect to his own criminal
charges — goes to the weight and credibility of his testimony. See
Commonwealth v. Rodriguez, 174 A.3d 1130, 1139 (Pa. Super. 2017)
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(claim — that witnesses were “untrustworthy given the fact that both
witnesses sought leniency and/or feared perjury charges if they did not testify
favorably for the Commonwealth” — goes to weight of their testimony). In
any event, both of the above claims — the admission of Bruno-Carrasquillo’s
testimony and its weight — “could have been raised before trial, at trial, or on
appeal.” See Commonwealth v. Lesko, 15 A.3d 345, 398 (Pa. 2011), citing
42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the petitioner could have raised
it but failed to do so before trial, at trial, during unitary review, on appeal or
in a prior state postconviction proceeding.”). As these claims are not “raised
in terms of prior counsel’s ineffectiveness,” they are waived. See Lesko, 15
A.3d at 398.
Appellant also avers the Commonwealth failed to disclose “that it had a
deal” with Bruno-Carrasquillo. Appellant’s Brief at 18. Appellant now claims
PCRA counsel was ineffective for not raising Trial Counsel’s ineffectiveness for
not investigating this alleged violation of Brady v. Maryland, 373 U.S. 83(1963).12
Contrary to Appellant’s repeated insistence, the trial evidence was that
while Bruno-Carrasquillo hoped for leniency, with respect to his own,
12To establish a Brady violation, a defendant must demonstrate that evidence
withheld by the Commonwealth “was favorable to him, because it was either
exculpatory or could have been used for impeachment; the prosecution either
willfully or inadvertently suppressed the evidence; and prejudice ensued.”
Interest of R.D., 44 A.3d 657, 675 (Pa. Super. 2012) (citation omitted).
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unrelated criminal charges, by testifying at Appellant and Co-Defendant’s trial,
Bruno-Carrasquillo was not promised anything by the prosecution. See N.T.
Trial Vol. III, 5/18/16, at 408-11. Appellant provides no explanation in
support of his allegations that Bruno-Carrasquillo had a “deal” with the
Commonwealth, nor that the Commonwealth withheld this information.
Accordingly, no relief is due on Appellant’s claim that PCRA Counsel was
ineffective for not presenting a claim that Trial Counsel was ineffective for not
presenting a Brady violation. See Timchak, 69 A.3d at 769; Interest of
R.D., 44 A.3d at 675.
VIII. Sufficiency of the Evidence
Appellant contends there was insufficient evidence, direct or
circumstantial, to support his convictions. Appellant’s Brief at 13. In support,
he reasons the “guilty verdict comes sole[l]y upon the reliance of hearsay
testimony” and all of the Commonwealth’s witnesses, aside from law
enforcement, “had hidden motives to testify for personal gain[.]” Id. at 13,
14. In any event, Appellant maintains “[t]he irrefutable facts and evidence”
show he was not present at the crime scene nor in possession of the murder
weapon. Id. at 14. Appellant further asserts PCRA counsel failed to raise a
claim of Trial Counsel’s ineffectiveness for waiving a sufficiency challenge on
direct appeal, by failing to specify the elements of the crime. Id. at 16. No
relief is due. We conclude that no relief is due.
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With respect to Appellant’s claim that Trial Counsel failed to properly
preserve a sufficiency claim, we summarize the following. On direct appeal,
Appellant challenged both the sufficiency and weight of the evidence, on the
grounds the Commonwealth did not disprove his claim of self-defense. This
Court rejected both arguments, adopting the trial court’s opinion. Mateo,
1784 MDA 2016 (unpub. memo. at 5-6). This Court summarized that the
Commonwealth presented an
abundance of circumstantial evidence and other significant
evidence supported finding of guilt beyond reasonable doubt[.]
Bruno-Carrasquillo testified Appellant told [him] that, on night of
incident, Appellant sought retribution against gang and shot into
vehicle [Brown] was driving, shooting [Brown] and [Breeland.]
Bruno-Carrasquillo also testified that [C]o-defendant said he
drove up to [the victims’] car and Appellant shot into car[.]
Belinda Akers testified she lent her maroon SUV to male, on
night of incident, whom she later identified as [C]o-defendant, and
he returned the SUV with shattered rear window[. C]o-
defendant’s cell phone contained text messages from Aker’s cell
phone about her SUV[.]
Thomas Hoke testified he heard series of gunshots on night
of incident and saw maroon or red SUV occupied by two black
males drive away at high speed from area of shooting[.]
Detective Gregory Schick testified there were multiple bullet
holes in [the victims’] vehicle, while Ms. Akers testified there were
no bullet holes in her SUV[. E]vidence established on night of
incident, Appellant and [C]o-defendant each dropped guns as they
fled on foot from police[.] DNA analyst testified it was highly likely
DNA found on gun Appellant dropped was Appellant’s DNA[.
B]ullet found in [the victims’] car matched gun Appellant dropped[
and] gunshot residue analysis revealed existence of gunshot
residue on Appellant’s clothing and hands[. The e]vidence and
testimony presented were sufficient for jury to determine
Appellant’s guilt[, and] verdict does not shock court’s
conscience[.]
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Id. (paragraph breaks added)
Nevertheless, the panel also concluded Appellant waived his sufficiency
of evidence claim for failure to specify, in his Rule 1925(b) statement, which
elements of his four convictions the Commonwealth allegedly failed to prove.
Mateo, 1784 MDA 2016 (unpub. memo. at 6-7). In the case sub judice, the
PCRA court rejected Appellant’s underlying claim that Trial Counsel was
ineffective for waiving this issue. The court reasoned Appellant did not prove,
by a preponderance of the evidence, that had the issue been properly
preserved, there was a reasonable probability the Superior Court would have
granted relief. PCRA Ct. Op., 11/8/19, at 7. We agree.
We have addressed Appellant’s repeated challenges to Bruno-
Carrasquillo’s testimony above; this witness clearly disclosed that while he
hoped for leniency with regard to his own criminal charges, he was not
promised anything by the Commonwealth. In any event, the weight and
credibility of his testimony were for the jury to determine. See Rodriguez,
174 A.3d at 1140 (jury is free to believe all, part, or none of the witness’s
testimony). Furthermore, contrary to Appellant’s claim that there was no
evidence implicating him in the shooting or even placing him at the scene,
there was ample circumstantial evidence to support his convictions – which
the direct appeal panel itself addressed. We also reiterate that Bruno-
Carrasquillo testified Appellant admitted to him that he (Appellant) shot into
both the driver’s and passenger’s sides of the gold SUV. In light of all the
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foregoing, we agree with the PCRA court that no relief is due on this claim of
counsel’s ineffectiveness. See Timchak, 69 A.3d at 769.
IX. Strategy of Self-Defense at Trial
Appellant argues PCRA Counsel was ineffective for not raising a claim of
Trial Counsel’s ineffectiveness for changing his defense strategy from one of
actual innocence to self-defense. Appellant’s Brief at 15. Appellant contends
he never requested, and Trial Counsel never advised him of, this change. Id.Appellant further reasons that a claim of self-defense “placed [him] at the
scene” and conceded “that he was the actual shooter.” Id. Appellant thus
suffered prejudice as the fact, that he “was a knowing[ ] participant [in] the
crimes,” changed the jury’s mindset. Id. No relief is due.
We incorporate our above discussion regarding the sufficiency of the
evidence. Appellant has not established that his underlying claim, that a
defense strategy of claiming actual innocence, would have resulted in verdicts
of not guilty, has arguable merit. Accordingly, we affirm the denial of relief
on this claim.13
13 The PCRA court denied relief on the grounds that a “decision to pursue a
trial strategy of self-defense, instead of actual innocence, is not an
overarching objective or purpose of a defense.” PCRA Ct. Op., 10/28/19, at
7. Nevertheless, “[t]his Court may affirm a PCRA court’s decision on any
grounds if the record supports it.” Commonwealth v. Reed, 107 A.3d 137,
140 (Pa. Super. 2014).
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X. Appellant’s Remaining Claims
Finally, we briefly address Appellant’s remaining claims of PCRA
Counsel’s ineffectiveness, for not challenging Trial Counsel’s alleged failure to:
(1) “present character witness [sic;]” (2) “object to the court’s response to
the jury pertaining to first degree murder that the specific intent to kill doesn’t
have to be the deceased Jordan Breeland, that it could be any member of the
group [sic;]” (3) “cross[-]examin[e] witness Jen Sears about the DNA profile
as it could not be 100% from [A]ppellant;” and (4) present “a DNA profile of
his own[.]” See Appellant’s Brief at 17.
Appellant fails to present any further explanation for any of these claims.
He does not identify the purported desired “character witness,” nor what their
testimony would entail. He does not present any context for the trial court’s
response to a jury question, nor any discussion of testimony about DNA.
Accordingly, these claims are waived for failure to develop them into a cogent
discussion. See Commonwealth v. Sepulveda, 55 A.3d 1108, 1133 (Pa.
2012) (issue waived on PCRA appeal where argument was not developed).
XI. Conclusion
As we conclude none of Appellant’s issues merits relief, we affirm the
order of the PCRA court denying his PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2022
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