Com. v. Pastrana, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GABRIEL PASTRANA :
:
Appellant : No. 561 EDA 2020
Appeal from the PCRA Order Entered January 14, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000720-2017
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 29, 2021
Appellant, Gabriel Pastrana, appeals from the January 14, 2020 order
denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
On direct appeal, a prior panel of this Court summarized the relevant
facts and procedural history of this case as follows:
Appellant was convicted by jury on February 8, 2018 of two
criminal offenses and by the court of several summary criminal
offenses. Appellant was convicted by jury of Count III, 75 Pa.C.S.
§3802(a)(1), Driving Under the Influence of Alcohol-General
Impairment, Third Offense; and Count IV, 75 Pa. C.S. §3742.1(a).
Accident Involving Death or Injury-Not Properly Licensed. Count I
and II of the Criminal Information were withdrawn by the
Commonwealth at trial. Appellant was found guilty by the court of
the following summary offenses: 75 Pa. C.S. §1543(b)(1), Driving
With A Suspended License Pursuant to §3802/1547(b)(1); 75 Pa.
C.S. §3323(b), Duties at Stop Sign; 75 Pa. C.S. §3361, Driving at
Safe Speed; 75 Pa. C.S. §3714(a), Careless Driving; 75 Pa. C.S.
§3736(a), Reckless Driving.
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The facts of this case were testified to during trial. The
underlying act involved a two-vehicle accident which occurred late
on February 4, 2017[,] into early morning February 5, 2017. That
time period coincided with Super Bowl Sunday. N.T., 2/8/18, p.
19. During half-time of the game, Thomas Cunningham drove his
wife from their home in Monroe County to St. Luke’s Hospital-
Anderson Campus in Bethlehem Twp. to retrieve her vehicle. N.T.,
2/8/18, p.21. On the return trip[,] Mr. Cunningham was driving
by himself along Old Route 115 in the area of Saylorsburg, Monroe
County, PA. N.T. 2/8/18, p. 22. Old Route 115 and Hamilton South
Road intersect in the vicinity of Saylorsburg with a stop sign facing
drivers turning from Hamilton South onto Old Route 115. N.T.,
2/8/18, p.70. There is no stop sign on Old Route 115. N.T.,
2/8/18, p.70. As Mr. Cunningham approached the intersection he
observed a vehicle that did not appear to be slowing for the stop
sign on Hamilton South. N.T., 2/8/18, p.22. Fearing the oncoming
driver would run the stop sign and strike him, Mr. Cunningham
sped up. N.T., 2/8/18, p. 22. Nevertheless, a collision occurred.
Mr. Cunningham remained in his vehicle until assistance arrived
and was later taken to the hospital with a broken rib and
contusions to his knee, ankle, and lower leg. N.T., 2/8/18, p.30-
31.
Meanwhile, the occupants of the other vehicle, Appellant
and his 18 year-old brother, Elson Pastrana, exited their vehicle.
Appellant and Elson Pastrana were returning from a Super Bowl
Party at the home of friends of Elson Pastrana’s girlfriend’s
parents. N.T., 2/8/18, p.42. The car they were in was owned by
and registered to Appellant. N.T., 2/8/18, p. 156. Appellant
estimated that he had consumed approximately six beers during
the party and at least one shot of clear liquor. N.T., 2/8/18.,
p.159. An ambulance operated by EMT Joyce Schuster arrived on
the scene prior to the arrival of Pennsylvania State Troopers Justin
S. Magluilo and Kevin Kreidler. During the course of the troopers’
investigation, Appellant and his brother were separated. N.T.,
2/8/18, p.118. By all accounts of the testimony offered at trial,
Appellant was severely intoxicated at this point. Trooper Kreidler
interviewed Elson Pastrana at the scene. N.T., 2/8/18, p. 118.
Elson Pastrana initially stated he was operating the vehicle at the
time of the accident, but upon further questioning by Trooper
Kreidler, admitted Appellant had actually been operating the
vehicle. N.T., 2/8/18, p. 118. Elson Pastrana then also told
Trooper Magluilo that he was the passenger and Appellant was the
driver. N.T., 2/8/18, p.72. Appellant was requested to perform
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field sobriety tests which he refused. N.T., 2/8/18, p. 77. At that
point, Appellant was arrested and placed in the back of Trooper
Kreidler’s car on suspicion of driving under the influence [(“DUI”)].
Trooper Magluilo then gave Elson Pastrana a ride to his girlfriend’s
home. N.T. 2/8/18, p.78.
Appellant was sentenced by the court on May 17, 2018. As
to Count III, Appellant was sentenced to a minimum of three
months’ incarceration and maximum of twelve months plus fines
and costs. As to Count IV, Appellant was sentenced to a minimum
of three months’ incarceration and a maximum of six months plus
fines and costs. These two sentences were ordered to run
consecutively. As to the 75 Pa. C.S. §1543(b) violation, Appellant
was sentenced to the statutorily required minimum sixty days’
incarceration to run concurrent to the sentences in Count III and
IV. Appellant was ordered to pay fines and costs for the remainder
of the summary offenses. Appellant filed timely Post-Sentence
Motions on May 25, 2018. A hearing was held on Appellant’s
motions on June 25, 2018, at which time the [c]ourt heard
argument from defense counsel and the Commonwealth.
Commonwealth v. Pastrana, 219 A.3d 232, 3056 EDA 2018 at *1-3 (Pa.
Super. filed June 12, 2019) (unpublished memorandum). On September 13,
2018, the trial court denied Appellant’s post-sentence motions. Appellant filed
a timely appeal, and on June 12, 2019, this Court affirmed Appellant’s
judgment of sentence. Id. at *22.
Appellant did not file a petition for allowance of appeal in our Supreme
Court. Therefore, for purposes of the PCRA, Appellant’s judgment of sentence
became final on July 12, 2019, thirty days after this Court’s disposition of his
direct appeal. See 42 Pa.C.S. § 9545(b)(3) (explaining that for purposes of
the PCRA, a petitioner’s judgment of sentence becomes final at the conclusion
of direct review, including discretionary review in the Supreme Court of
Pennsylvania and the Supreme Court of United States, or at the expiration of
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time for seeking review); see also Pa.R.A.P. 1113 (“[A] petition for allowance
of appeal shall be filed with the Prothonotary of the Supreme Court within 30
days after the entry of the order of the Superior Court or the Commonwealth
Court sought to be reviewed.”).
Appellant filed a timely PCRA petition on October 15, 2019. See 42
Pa.C.S. § 9545(b)(1) (stating that in order to be considered timely, a PCRA
petition shall be filed within one year of the date that the judgment becomes
final). The PCRA court appointed counsel to represent Appellant on October
22, 2019, and on December 19, 2019, the PCRA court held a hearing on
Appellant’s PCRA petition. On January 14, 2020, the PCRA court denied
Appellant’s PCRA petition, and Appellant filed a timely appeal on January 29,
2020. Both the PCRA court and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues:
I. Whether the Lower Court erred by denying Appellant’s PCRA
Petition despite trial counsel’s clear failure to interview, subpoena
or call to testify a material witness to the threshold issue of
whether Appellant was the driver in his DUI trial.
II. Whether the Lower Court erred by denying Appellant’s PCRA
Petition despite trial counsel’s failure to request a mistrial in
[Appellant’s] DUI trial immediately following testimony by the
affiant State Trooper that [Appellant’s] driver’s license was DUI-
suspended at the time of the alleged offense, in direct violation of
the agreement reached pre-trial with the Trial Court that such
information would not be disseminated to the jury.
Appellant’s Brief at 4.
When reviewing the denial of a PCRA petition, we consider “whether the
PCRA court’s determination is supported by the record and free from legal
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error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-1284 (Pa. 2016)
(internal quotation marks and citation omitted). Our standard of review is de
novo as to the PCRA court’s legal conclusions. Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015).
In both of his issues, Appellant raises claims of ineffective assistance of
counsel. It is well settled that counsel is presumed to be effective, and the
petitioner bears the burden of proving ineffectiveness. Commonwealth v.
Brown, 196 A.3d 130, 150 (Pa. 2018) (citation omitted).
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the ineffective 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.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quotation omitted).
Pursuant to the United States Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), and the Pennsylvania Supreme Court’s
decision in Commonwealth v. Pierce, 527 A.2d 973, 975-977 (Pa. 1987),
in order to prevail on a claim of ineffective assistance of counsel, the petitioner
must plead and prove three elements: 1) the underlying claim has arguable
merit; 2) counsel had no reasonable basis for his action; and, 3) the petitioner
suffered prejudice as a result of counsel’s action. Brown, 196 A.3d at 150.
“If a petitioner fails to prove any of these prongs, his claim fails.” Spotz, 84
at 311 (citation omitted).
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Additionally, “[w]ith regard to the second, reasonable basis prong, we
do not question whether there were other more logical courses of action which
counsel could have pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis.” Commonwealth v. Chmiel, 30 A.3d
1111, 1127 (Pa. 2011) (citation and quotation marks omitted). Regarding the
prejudice prong, a petitioner must demonstrate that there is a reasonable
probability that the outcome of the proceedings would have been different but
for counsel’s action or inaction. Commonwealth v. Dennis, 950 A.2d 945,
954 (Pa. 2008).
In his first issue, Appellant avers that trial counsel was ineffective in
failing to interview, subpoena, or call a material witness concerning whether
Appellant or his brother, Elson Pastrana, was driving the car at the time of the
accident. Appellant’s Brief at 8. After careful review, we conclude that this
issue is meritless.
The PCRA court addressed this issue as follows:
[Appellant] alleges that trial counsel should have called Lisa
McCauley as a witness at time of trial. Ms. McCauley is the mother
of Elson Pastrana’s girlfriend. Elson Pastrana is the brother of the
[Appellant], who was also in the vehicle at the time of the incident.
Ms. McCauley testified at the PCRA hearing that she remembers
[Appellant] and Elson Pastrana leaving the Super Bowl party that
they were all attending. She confirmed that [Appellant] had to[o]
much to drink, and that Elson Pastrana had nothing to drink. Ms.
McCauley testified she recalled that [Appellant] was in the
passenger seat and Elson Pastrana was in the driver’s seat at the
time they all left the party. Ms. McCauley stated she was sure of
this because she assisted [Appellant] in securing his seatbelt while
he was in the passenger’s seat. Ms. McCauley and her family, who
were in a separate vehicle, then drove away first. The McCauley’s
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and [Appellant’s] vehicles then went different routes home. Ms.
McCauley did not hear anything from trial counsel about this
matter, nor did she receive a phone call or subpoena to testify at
trial.
Mr. Velander[, Appellant’s trial counsel,] testified [at
Appellant’s PCRA hearing] that he had a discussion with
[Appellant] about potential witnesses for trial. He also discussed
the same with Elson Pastrana and Elson’s counsel, Thomas
Sundmaker, Esquire. Mr. Velander recalled Elson Pastrana stating
that his girlfriend’s mother had seen them getting in the car when
leaving the Super Bowl party. Mr. Velander believes he was given
a first name of the person and an approximate location where she
lived, but no address or other information.
Mr. Velander had a further discussion about the ability to
subpoena witnesses if necessary. He recalled that he was told that
Elson Pastrana and his girlfriend were no longer together. Mr.
Velander opted not to contact Elson Pastrana’s girlfriend and the
girlfriend’s mother because of the fact they were no longer dating.
Mr. Velander was concerned that any hostility between Elson
Pastrana and the girlfriend over the break-up would potentially
hurt [Appellant’s] case. Ms. McCauley confirmed that Elson
Pastrana and her daughter are still dating at the current time, but
that they did break up once or twice for a short period of time.
She did not indicate the timing of the break-up(s) in relation to
Mr. Velander’s inquiries about the matter with [Appellant] and
Elson Pastrana. Mr. Velander believed the testimony of Elson
Pastrana, that he was the driver, would be strong enough to acquit
[Appellant]. Mr. Velander did not want to call a witness who could
prove to be a hostile witness. Therefore, Mr. Velander elected not
to pursue the witness.
We will deny the [Appellant’s claim] for several reasons.
First, there was no evidence the witness’s absence was so
prejudicial that [Appellant] was denied a fair trial. The witness, if
called, apparently would have testified to the fact [Appellant] was
intoxicated, and that she witnessed him get in the passenger seat
as he left the Super Bowl party. However, the witness does not
know what happened after she drove away from the residence
where the party took place. Ms. McCauley and her family left
before [Appellant] and Elson Pastrana left, and went their
separate ways. The witness’s testimony, while credible, does not
provide an alibi as it relates to the exact time of the accident.
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Second, trial counsel believed that the testimony of Elson
Pastrana, which was self-inculpatory as to the cause of the
accident, would establish that he - and not [Appellant] - was
driving at the time of the accident. Mr. Velander felt this witness
would only have provided some corroboration, and was
unnecessary. More importantly, Mr. Velander assessed the
witness as possibly being hostile and causing more harm than
help. He remembers being told that Elson Pastrana and the
girlfriend had broken up at the time of trial preparation.
[Appellant] also testified that he discussed with Mr. Velander that
his brother and girlfriend were no longer dating and that they then
discussed the possibility of a subpoena to secure anyone needed.
Mr. Velander determined, as trial strategy, that it was best not to
contact the witness or Elson Pastrana’s girlfriend because of the
break-up. Mr. Velander was concerned the testimony could prove
hostile, or of no additional assistance, and that Elson Pastrana’s
testimony was sufficient to acquit. Mr. Velander, as trial counsel,
had a reasonable basis for not calling Ms. McCauley under those
circumstances. The request for relief on this basis will also be
denied.
PCRA Court Opinion, 1/14/20, at 7-9.
We discern no error of law in the PCRA court’s reasoning or rationale.
Although the potential witness, Ms. McCauley, testified that Appellant was
intoxicated and that she saw Appellant enter the vehicle on the passenger’s
side on the night of the accident, Ms. McCauley also testified that she departed
before Appellant and Appellant’s brother Elson Pastrana left the party. Thus,
Ms. McCauley could not have provided definitive testimony concerning
whether Appellant or Elson Pastrana was driving Appellant’s car at the time of
the accident. Moreover, Appellant’s counsel made a strategic decision not to
call Ms. McCauley as a witness because it was his understanding that Elson
Pastrana and Ms. McCauley’s daughter were no longer in a romantic
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relationship, and counsel believed this separation may have led to
Ms. McCauley being a hostile defense witness at Appellant’s trial.
After review, we agree with the PCRA court, and we conclude that
counsel had a reasonable basis for his decision. Chmiel, 30 A.3d at 1127.
Therefore, Appellant is entitled to no relief on this claim of error.
In his second issue on appeal, Appellant contends that counsel was
ineffective in failing to move for a mistrial after Pennsylvania State Trooper
Kevin Kreidler testified that Appellant’s driver’s license was under suspension
due to a prior DUI conviction in violation of a pretrial agreement between the
Commonwealth and Appellant. Appellant’s Brief at 13. We conclude that no
relief is due.
The PCRA court disposed of this issue as follows:
[Appellant’s next] issue was trial counsel’s failure to object
and/or request a mistrial as to the affiant’s testimony that driving
records showed the [Appellant] was DUI Suspended at the time
of this incident. The relevant testimony of the affiant, Trooper
Kevin Kreidler, was as follows:
Q. (District Attorney Rogers) Okay. You also took steps to
determine -- the car that was involved in the crash which
held [Appellant], you took steps to determine who that car
was registered to, correct?
A. Yes.
Q. Who was it registered to?
A. It’s the vehicle registered to [Appellant].
* * *
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Q. And Trooper, you also took steps to determine the status
of [Appellant] relative to his driver’s license, whether he had
a valid license, correct?
A. Yes.
Q. What did your investigation show in that regard?
A. Running it through the system, it indicated that he was
suspended DUI-related at the time of the crash.
Q. Okay. [Appellant] also talked to you?
A. Excuse me?
Q. At some point, did [Appellant] talk to you in addition to
things we have talked about?
A. Well, I had conversation with him.
Q. What did he say about who was the driver?
A. He stated that his brother had driven. That he wasn’t
driving.
[District Attorney Rogers]: Okay.
[Counsel for Appellant]: May we approach, your honor.
Court: Yes.
* * *
(N.T. Feb. 8, 2018, pp. 120-121).
A discussion then ensued about the driving record being
admitted as an exhibit at trial. The reason for the exhibit and the
line of questioning on the status of [Appellant’s] license was for
the charge of Accidents Involving Death/Injury - Not Properly
Licensed, which the jury had to consider, and for the Driving While
License Suspended or Revoked - DUI Related, which the court had
to consider. Unfortunately, the trooper inadvertently mentioned in
his testimony that [Appellant’s] license was DUI suspended,
rather than just saying it was suspended.1
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1 The purpose of the driving record as an exhibit was
to show the court it was a DUI-suspended license
without showing or telling the jury that fact. The
exhibit was admitted, but not published to the jury.
[Appellant] contends his trial counsel, Mr. Velander, should
have raised an objection to the trooper’s statement that
[Appellant’s] license was DUI suspended, and/or requested a
mistrial. Trial counsel did ask to approach shortly after the
statement in question was made by the trooper. A discussion was
held about the exhibit containing [Appellant’s] driving record. The
district attorney suggested the Court give the jury a cautionary
instruction concerning the exhibit and trial counsel agreed. No
further discussion occurred regarding the trooper’s testimony.
Ultimately this Court gave a closing instruction as follows:
I instruct you that you are only to consider whether or not
the [Appellant’s] license was suspended at the time of the
accident. You shall not consider the reasons for that
suspension.
(N.T. Feb. 8, 2018, p. 216).
At the hearing on [Appellant’s] PCRA petition, Mr. Velander
indicated he was conferring with [Appellant] at the time of the
trooper’s statement that [Appellant’s] license was DUI suspended.
Mr. Velander stated his client heard the statement and told him
about it. At that point, [Mr. Velander] requested to approach at
sidebar, after the slight delay as shown in the transcript. Mr.
Velander testified that he couldn’t really tell if the testimony made
an impression on the jury and he didn’t want to draw attention to
it. He was concerned a curative instruction given at the immediate
time would draw attention to it and he did not want it repeated.
Mr. Velander stated he considered requesting a mistrial, but felt it
was early enough in the case, and that [Appellant’s] brother’s
testimony was so strong, it was best to continue.2 He believed the
evidence would be enough to acquit. In other words, trial counsel
made a tactical decision not to request a mistrial.
2 [Appellant’s] brother, Elson Pastrana, was an
eyewitness and testified he was driving the vehicle at
the time of the incident, and not [Appellant].
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Looking at the events as a whole, and trial counsel’s
reasoning on trial strategy, we can agree the decision to proceed,
and not to have an immediate cautionary instruction or request a
mistrial, has arguable merit. Trial counsel’s actions had an
objective reasonable basis. Furthermore, any prejudice to
[Appellant] was cured by the cautionary closing instruction by the
[trial c]ourt telling the jury to disregard the reason for any
suspension, and only consider if [Appellant’s] license was
suspended. As such, this issue will be denied.
PCRA Court Opinion, 1/14/20, at 3-6 (internal quotation marks omitted).
We agree with the PCRA court’s conclusion. Although Trooper Kreidler
mentioned that Appellant’s driver’s license was suspended due to a prior DUI,
Appellant’s counsel had a reasonable basis for not objecting or moving for a
mistrial. Appellant’s counsel believed that Appellant’s case was strong, and
counsel concluded that bringing further attention to the Trooper’s testimony
would negatively impact the jury. We find that counsel’s decision was a
reasonable trial strategy under the circumstances; therefore, we cannot
conclude that that counsel was ineffective for failing to object or move for a
mistrial. Chmiel, 30 A.3d at 1127. Appellant is entitled to no relief on this
issue.
For the reasons set forth above, we conclude that the PCRA court’s ruling
on Appellant’s PCRA petition was supported by the record and free from legal
error. Mitchell, 141 A.3d at 1283-1284. Accordingly, we affirm the PCRA
court’s order denying Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/21
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