Com. v. Figueroa-Serrano, I.

J-S23001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISMAEL FIGUEROA-SERRANO :
:
Appellant : No. 199 MDA 2022
Appeal from the PCRA Order Entered January 20, 2022
In the Court of Common Pleas of the 39th Judicial District
Fulton County Branch
Criminal Division at No: CP-29-CR-0000003-2019
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 14, 2022
Appellant, Ismael Figueroa-Serrano, appeals from the order dismissing
his petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The PCRA court summarized the relevant background as follows.
On January 2, 2019, [Appellant] who was on parole, was visited
by his parole agent following a tip he received that [Appellant]
was in possession of a firearm. [Appellant] is a felon and therefore
was prohibited from possessing firearms. Upon questioning,
[Appellant] admitted to his parole officer that he was in possession
of a firearm. With the aid of Pennsylvania State Police,
[Appellant]’s parole officer searched the residence and discovered
a Marlin .22 caliber rifle located in the closet of [Appellant]’s infant
daughter’s room. [Appellant] was arrested.
The same day, Trooper Jeffrey Beal filed a criminal complaint
charging [Appellant] with a single count of unlawfully possessing
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* Retired Senior Judge assigned to the Superior Court.
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a firearm, a second degree felony. In the box provided for
”Offense Date,” Trooper Beal wrote “01/02/19 / APPROX. 1015
HRS.” On the following page in the box provided for “Acts of the
accused associated with this Offense,” Trooper Beal began with,
“On the above time and date . . .” and then proceeded to describe
the offense. In the affidavit of probable cause, Trooper Beal
described the events of January 2, 2019, and makes no reference
to any other date or time that [Appellant] may have possessed a
firearm. In [Appellant]’s criminal docket where his charges are
listed, in the box provided for “Offense Dt.,” the offense date is
listed as “01/02/2019.” On the bill of information, filed on January
31, 2019, the Attorney for the Commonwealth wrote, “The Fulton
County District Attorney by this information charges: that on (or
about) January 2, 2019, in said county . . .” and then provides the
applicable offense.
The case was brought to a jury trial on December 18, 2019.
[Appellant] was represented at trial by counsel. The question of
constructive possession arose at trial, as the rifle was located in
the infant’s bedroom, not in a location [] exclusively controlled by
[Appellant]. [Appellant]’s defense, summarized, was that he did
not know the rifle was in the closet and that it had been
deliberately put there by his girlfriend to entrap him. To refute
this theory and to prove constructive possession, the
Commonwealth put on evidence to show that, at several times in
the past, [Appellant] had possessed the gun in question. Three
witnesses testified that [Appellant] had been in possession of the
rifle in late 2017, summer of 2018, late 2018, and during buck
season of 2018, which we note occurs in late November and
December.
During deliberations, the jury sent back a question, asking, “Do
the current charges apply to other times he may have possessed
the firearm?” After having discussed the matter at sidebar, the
Commonwealth suggested that the court send back an instruction
as to the specific offense, but it did not contain any instruction
regarding the relevant time period. [Appellant]’s trial counsel
agreed with the Commonwealth’s suggestion, and the court sent
back the instruction on the specific offense only. [Appellant] was
thereafter convicted. [Appellant] timely filed a post-sentence
motion on January 8, 2020, which was denied. [Appellant] timely
filed the instant action, pursuant to the [PCRA], on May 5, 2021.
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PCRA Court Opinion, 1/20/22, at 1-3 (footnotes omitted, unnecessary
capitalization omitted).
When reviewing the propriety of an order pertaining to PCRA relief,
we consider the record in the light most favorable to the prevailing
party at the PCRA level. This Court is limited to determining
whether the evidence of record supports the conclusions of the
PCRA court and whether the ruling is free of legal error. We grant
great deference to the PCRA court’s findings that are supported in
the record and will not disturb them unless they have no support
in the certified record. However, we afford no such deference to
the post-conviction court’s legal conclusions. We thus apply a de
novo standard of review to the PCRA [c]ourt’s legal conclusions.
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).
Appellant argues that trial counsel should have requested an instruction
to the jury – in response to the jury’s question and as part of the trial court’s
instructions in general – that the jury was constrained to the period of “on or
about January 2, 2019” in determining whether Appellant possessed the
firearm in question. See Concise Statement of Matters Complained of on
Appeal, 2/22/22.
A petitioner alleging ineffective assistance
will be granted relief only when he proves, by a preponderance of
the evidence, that his conviction or sentence resulted from the
“[i]neffective 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.” 42 Pa.C.S.[A.] § 9543(a)(2)(ii). “Counsel is presumed
effective, and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel's performance was deficient and that
such deficiency prejudiced him.” Commonwealth v. Colavita,
993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the
Strickland performance and prejudice test into a three-part
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inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001). Thus, to prove counsel ineffective, the petitioner must
show that: (1) his underlying claim is of arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and (3)
the petitioner suffered actual prejudice as a result.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Prejudice, in the context of ineffective assistance claims, requires proof
of a reasonable probability that but for counsel’s error, the outcome of the
proceeding would have been different. Commonwealth v. Kimball, 724
A.2d 326, 331 (Pa. 1999). A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the proceeding. See Ali, 10 A.3d
at 291. A “criminal defendant alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. . . . Thus, an analysis focusing solely on mere outcome
determination, without attention to whether the result of the proceeding was
fundamentally unfair or unreliable, is defective.” Kimball, 724 A.2d 331(citation omitted). Finally, the petitioner’s failure to satisfy any of the three
prongs requires rejection of his ineffective assistance claim. Commonwealth
v. Ly, 980 A.2d 61, 74 (Pa. 2009).
As explained below, Appellant failed to prove that he suffered prejudice
from counsel’s failure to seek a jury instruction as detailed above.
“[N]o one, including the Commonwealth, ever argued to the jury that
they should find Appellant guilty for acts committed at any time other than
January 2, 2019.” PCRA Court Opinion, 2/22/22, at 2. In fact,
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Trooper Beal repeatedly included the date of January 2, 2019, as
the date of the offense. At trial, the Commonwealth sought to
prove only that [Appellant] had constructive possession over the
firearm on January 2, 2019, and [Appellant]’s trial counsel focused
his defense entirely around the events of that date. The
Commonwealth did not charge [Appellant] with having possessed
the firearm any of the four previous times, providing such
evidence only to prove constructive possession. In the
Commonwealth’s theory of the case, evidence that he had
previously possessed the rifle supported their argument that
[Appellant] constructively possessed the rifle on January 2, 2019.
Id. at 5.
The above summary is an accurate representation of the proceedings
below, and falls far short of showing a serious error by trial counsel, let alone
one that establishes that the outcome of the trial would have been different
had counsel not made that alleged error.
As Appellant is unable to point to anything in the record supporting a
finding of actual ineffectiveness, he resorts to a fallback argument, i.e.,
Appellant argues that the prejudice he suffered from counsel’s omission is
self-evident, and, as such, it can be presumed. In other words, in Appellant’s
view, the negative outcome of his trial is itself evidence of the prejudice he
suffered. Indeed, Appellant argues that
[t]he jury’s question itself provides adequate proof of a reasonable
likelihood that a different result could have occurred had proper
instruction on timing been provided.
It takes no speculation to determine that the jury’s question had
significance to at least one member of the jury. It takes no
speculation to determine that the jury had not yet reached a final
decision at the time it posed its question. It takes no speculation
to determine that the jury was deprived of important law that was
in some way relevant to its determination.
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Appellant’s Brief at 21.
We perceive two problems with Appellant’s argument. First, “an
analysis [, like the one offered by Appellant,] focusing solely on mere outcome
determination, without attention to whether the result of the proceeding was
fundamentally unfair or unreliable, is defective.” Kimball, 724 A.2d at 331
(citing Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993)).
Second, this is not an instance where prejudice can be presumed.
Indeed, Cronic1 and its progeny limit the per se prejudice category to a
narrow number of situations where there are some “circumstances that are so
likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified.” Id. at 658. Presumed prejudice in the context
of per se trial counsel ineffectiveness “has been applied in three
circumstances: where there was an actual or constructive denial of counsel,
the state interfered with counsel’s assistance, or counsel had an actual conflict
of interest” and “is limited to situations where counsel’s failure is complete,
i.e., where counsel has entirely failed to function as the client’s advocate.”
Commonwealth v. Lawrence, 165 A.3d 34, 46 (Pa. Super. 2017) (internal
citations omitted).
Appellant claims that the prejudice he suffered should be presumed but
fails to address Cronic or any other authority supporting the application of
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1 United States v. Cronic, 466 U.S. 648 (1984).
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the per se ineffectiveness analysis to the instant matter. As such, we conclude
that the per se ineffectiveness analysis is not applicable here.
In light of the foregoing, we cannot conclude that counsel’s omission
rendered the verdict unreliable.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2022
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