Com. v. Gonzalez, M.

J-S35010-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MANUEL GONZALEZ :
:
Appellant : No. 1405 EDA 2019
Appeal from the PCRA Order Entered May 1, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001329-2012
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: JANUARY 8, 2021
Manuel Gonzalez appeals pro se from the denial of his first Post-
Conviction Relief Act (“PCRA”) petition. After careful review, we affirm.
The trial court previously summarized the relevant factual history of this
case as follows:
On the night of October 21, 2011, Appellant was attending a social
gathering at the residence of Darlene DeLeon, which is located
near the intersection of Sixth and Gordon Streets in Allentown,
Pennsylvania. Also attending this gathering were Manuel
DeLaRosa (aka “Sencillo”), Ronald Diaz (aka “Mafia”), Eddie
Herman (aka “Choko”), and Mario Nunez.
At some point that night, Manuel DeLaRosa and Mario Nunez
became involved in an altercation in front of Ms. DeLeon’s
residence with Kareem Lomax and Anthony Santiago. DeLaRosa
and Nunez then chased Lomax and Santiago several blocks on
foot. During the chase, either DeLaRosa or Nunez fired gunshots
in the direction of Lomax and Santiago. After the altercation,
DeLaRosa and Nunez returned to Ms. DeLeon’s residence.
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* Retired Senior Judge assigned to the Superior Court.
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Thereafter, Appellant took possession of a handgun from Mario
Nunez.
At some time later on the night of October 21, 2011, or in the
early hours of October 22, 2011, Appellant, Manuel DeLaRosa,
Ronald Diaz, Eddie Herman and Mario Nunez decided to leave that
gathering at Ms. DeLeon’s residence and drive to the south side
of Allentown to attend another party and effectuate a sale of
marijuana. Mario Nunez drove the men in the blue Acura
automobile he owned.
Around 2:00 a.m. on the morning of October 22, before driving to
the south side of Allentown, Mr. Nunez stopped at the Sunoco gas
station and minimarket located at the intersection of 12th and
Hamilton Streets in Allentown. Mr. Nunez stopped there to add
gasoline to his automobile and to allow his passengers to purchase
food and drinks at the minimarket.
While at the Sunoco parking lot, Appellant and his group
encountered a group of approximately [thirty] to [forty] people.
Appellant recognized several people in this group as members of
the “Bloods” street gang. This large group of people had just left
a party at a nearby residence where the guests had been
consuming alcohol. Included in this large group were Kareem
Lomax and the victim in this case, Devon Robinson.
Kareem Lomax saw the Appellant and the two shook hands.
Though not friends, Lomax and Appellant were acquaintances and
knew each other from living in the same neighborhood around 5th
and Gordon Streets in Allentown. Lomax also saw Manuel
DeLaRosa and recognized him as one of the men who had chased
him and fired gunshots in his direction a few hours earlier. Lomax
confronted DeLaRosa and questioned him about the incident. As
the two men argued, they were approached by Appellant, his
group and the large group of people with which Lomax associated.
Several men in Lomax’s group, including Nelson Soler, possessed
guns. At one point, Soler pointed his gun in the direction of
Appellant’s group. During the argument, DeLaRosa denied any
involvement in the earlier altercation, but smirked and snickered
at Lomax. With this, Lomax threw a juice or iced tea he was
holding at DeLaRosa and began to chase him through the parking
lot. This action precipitated a brawl between Appellant’s group
and Lomax’s group.
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During the brawl, Appellant initially attempted to pacify the
belligerents and end the fighting. However, Devon Robinson
approached Appellant and punched him in the head, knocking him
to the ground. This act was met with laughter from the Lomax
group. Appellant then stood up and began to chase Robinson
while brandishing a handgun. Mario Nunez joined Appellant in
chasing after Robinson. During the chase, Appellant fired a
gunshot into the back of Robinson. Around the same time,
Robinson and Appellant collided with an automobile attempting to
back out of a parking spot and Robinson fell to the ground.
Appellant was able to stay standing, but dropped his handgun.
Nunez approached Robinson, who was still on the ground, and
began to kick him in the face and chest. Appellant quickly
retrieved his handgun, walked over to Robinson, stood over him
and fired a gunshot into his head. Robinson died as a result of
the initial gunshot into his back.
The entirety of the altercation described above was recorded on a
wireless surveillance camera fixed at the intersection of 12th and
Hamilton Streets by the Allentown Police Department.
After shooting Robinson, Appellant ran from the scene. Later on
the morning of October 22, Appellant went to the residence of his
girlfriend, Ambar Perez, located at 333 North Hall Street in
Allentown. Appellant woke Ms. Perez and explained to her that he
was in a fight and that he believed he may have badly hurt or
killed someone. Ms. Perez was disturbed by this revelation and
asked Appellant to leave her residence. Appellant complied and
evaded authorities for approximately three and a half months.
Appellant ultimately returned to Ms. Perez’s residence in February
of 2012. On February 13, 2012, Officer Joseph Iannetta, a
patrolman employed by the Allentown Police Department,
executed an arrest warrant for Appellant at Ms. Perez’s residence
and Appellant was taken into custody. After being taken into
custody, Appellant was interviewed at police headquarters by
Detectives Joseph Vazquez and Stephen Milkovits of the Allentown
Police Department. Appellant admitted being at the scene of the
altercation and being punched by Devon Robinson. However,
Appellant denied shooting Robinson.
Trial Court Opinion, 12/11/13, at 2-5.
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Appellant was arrested and charged with criminal homicide. Trial
counsel filed pretrial motions seeking to suppress various pieces of evidence,
which were denied. A jury trial was held, at which the jury saw surveillance
footage of the shooting and multiple eyewitnesses identified Appellant as the
shooter. Appellant testified, admitting for the first time that he was the
shooter. While he could not remember what transpired between when he was
hit in the head and when he fired the last shot, Appellant nonetheless
contended that he acted in self-defense. See N.T. Jury Trial, 7/12/13, at 912-
13. Ultimately, the jury found Appellant guilty of third-degree murder.
Following review of a pre-sentence investigation report, the trial court
sentenced Appellant to a term of twenty to forty years of incarceration.
Appellant filed a direct appeal. Therein, he alleged that the
Commonwealth committed prosecutorial misconduct during closing
arguments, and also argued that the trial court erred by directing questions
at Appellant while he was testifying and by prohibiting Appellant from
questioning Commonwealth witnesses about their gang membership. This
Court rejected Appellant’s claims and affirmed his judgment of sentence, and
our Supreme Court denied Appellant’s subsequent petition for allowance of
appeal. See Commonwealth v. Gonzalez, 113 A.3d 349 (Pa.Super. 2014)
(unpublished memorandum), appeal denied, 117 A.3d 295 (Pa. 2015).
Appellant filed a timely counseled PCRA petition, alleging trial and
appellate counsel ineffectiveness generally. He requested court assistance
acquiring pre-trial discovery from trial counsel, since his letters requesting the
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same had gone unanswered. After almost two years of proceedings
surrounding whether PCRA counsel had shown the necessary extraordinary
circumstances to entitle him to discovery in the PCRA context, PCRA counsel
received the pre-trial discovery packet.1 In January of 2019, PCRA counsel
filed a Turner/Finley2 no-merit letter, alleging that he had reviewed
Appellant’s file, the notes of testimony, and appellate pleadings. Based upon
this review, he stated that Appellant wished to raise two claims: 1) that
appellate counsel was ineffective for failing to raise a claim alleging that the
evidence was sufficient to support his self-defense claim, and 2) that trial
counsel provided ineffective assistance when he conveyed his assessment of
the strength of the Commonwealth’s case to Appellant. See Turner/Finley
Letter, 1/3/19, at 4. PCRA counsel gave explanations of why each issue was
meritless and further averred that his own review had uncovered no
meritorious issues which could be raised in an amended PCRA petition.
Accordingly, PCRA counsel served his letter on Appellant and sought leave to
withdraw from the case.
On February 7, 2019, the PCRA court issued Pa.R.Crim.P. 907 notice of
its intent to dismiss the petition, indicating that it had conducted its own
independent review and giving its reasons for agreeing with PCRA counsel’s
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1 Also during this time, Appellant’s petition was transferred to a new PCRA
court after his trial judge retired.
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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assessment that neither claim had arguable merit. The PCRA court also
granted counsel’s request to withdraw. Appellant responded with pro se
objections to the Rule 907 notice, arguing that PCRA counsel failed to
adequately investigate the issues Appellant wished to raise. However,
Appellant did not specify what issues PCRA counsel had overlooked. The PCRA
court denied the PCRA petition, noting that Appellant had not explained what
the issues were that PCRA counsel failed to raise. This appeal followed. The
trial court did not order Appellant to file a concise statement. Instead, the
PCRA court satisfied Pa.R.Crim.P. 1925(a) by forwarding its Rule 907 order
and the order dismissing the PCRA petition.
Appellant raises the following issues for our review:
1. Did trial, appellate counsel render deficient performance in
critical aspects of the pre-trial, trial, sentencing, and direct
appeal proceedings; and confidence in the outcome is
undermined as a result, effectively establishing prejudice?
2. Did P.C.R.A. counsel, Craig M. Cooley, Esq., render
ineffective assistance of counsel when issuing a
Turner/Finley/Friend letter and petition to withdraw as
counsel by stating that discovery was unavailable at the
time of P.C.R.A. filing, yet had said discovery in his
possession at all times?
Appellant’s brief at 5 (capitalization corrected).
We begin with a discussion of the pertinent legal principles. Our “review
is limited to the findings of the PCRA court and the evidence of record,” and
we do not “disturb a PCRA court’s ruling if it is supported by evidence of record
and is free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
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(Pa.Super. 2012). Similarly, “[w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference to its legal
conclusions.” Id. “[W]here the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.” Id.Appellant alleges layered claims of ineffective assistance of counsel
(“IAC”). In reviewing IAC claims, counsel is presumed to be effective, and a
PCRA petitioner bears the burden of proving otherwise. See Commonwealth
v. Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, a petitioner must
plead and prove that: (1) the legal claim underlying his ineffectiveness claim
has arguable merit; (2) counsel’s decision to act (or not) lacked a reasonable
basis designed to effectuate the petitioner’s interests; and (3) prejudice
resulted. Id. The failure to establish any of the three prongs is fatal to the
claim. Id. at 113.
Where a petitioner asserts a layered IAC claim he must argue each
prong of the three-prong ineffectiveness test for each separate attorney.
Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011). As we have
explained:
Layered claims of ineffectiveness are not wholly distinct from the
underlying claims, because proof of the underlying claim is an
essential element of the derivative ineffectiveness claim . . . . In
determining a layered claim of ineffectiveness, the critical inquiry
is whether the first attorney that the defendant asserts was
ineffective did, in fact, render ineffective assistance of counsel. If
that attorney was effective, then subsequent counsel cannot be
deemed ineffective for failing to raise the underlying issue.
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Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.Super. 2012) (citations
and quotations omitted).
In Appellant’s first layered IAC claim, Appellant attacks appellate
counsel’s effectiveness after he failed to challenge the sufficiency of the
evidence on the grounds that Appellant had established an affirmative
defense. Appellant further alleges that PCRA counsel was ineffective for not
litigating this issue.3 See Appellant’s brief at 9-10. In his Turner/Finley
letter, PCRA counsel addressed Appellant’s desire to raise a claim alleging that
the evidence supported his self-defense theory, finding a layered sufficiency
claim on these grounds to be meritless. See Turner/Finley Letter, 1/3/19,
at 4-5. The PCRA court agreed, finding that the Commonwealth presented
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3 Appellant asserts two additional layered claims of ineffectiveness for the first
time on appeal, namely that PCRA counsel was ineffective in not claiming that:
(1) trial counsel was ineffective for failing to “adequately present” a self-
defense theory and (2) that appellate counsel was ineffective for failing to
challenge the weight of the evidence on direct appeal. See Appellant’s brief
at 9-10. However, claims of PCRA counsel ineffectiveness cannot be raised
for the first time on appeal. See Commonwealth v. Vo, 235 A.3d 365, 370
(Pa.Super. 2020); see also Commonwealth v. Smith, 121 A.3d 1049, 1054
(Pa.Super. 2015) citing Commonwealth v. Ford, 44 A.3d 1190, 1201
(Pa.Super. 2012) (“[A]bsent recognition of a constitutional right to effective
collateral review counsel, claims of PCRA counsel ineffectiveness cannot be
raised for the first time after a notice of appeal has been taken from the
underlying PCRA matter.”). While Appellant did file a pro se response to the
Rule 907 notice generally alleging PCRA counsel ineffectiveness for filing the
Turner/Finley letter, he failed to detail either of these layered ineffectiveness
claims in his response. See Objections to the Notice of Intent to Dismiss,
3/4/19. Accordingly, these claims are waived and we may not consider them
here.
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sufficient evidence to overcome Appellant’s self-defense claim. See Rule 907
Notice, 2/7/19, at 2. We agree.
Our standard of review when considering a challenge to the sufficiency
of the evidence is:
[w]hether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017)
(citations and quotation marks omitted).
Under Pennsylvania law, the justified use of deadly force requires three
separate elements, namely:
a) the actor was free from fault in provoking or continuing the
difficulty which resulted in the use of deadly force; b) the actor
must have reasonably believed that he was in imminent danger of
death or serious bodily injury, and that there was a necessity to
use such force in order to save himself or others therefrom; and
c) the actor did not violate any duty to retreat or to avoid the
danger. The defendant has no “burden to prove” his self-defense
claim. The Supreme Court explained the evidentiary burdens as
follows:
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While there is no burden on a defendant to prove the [self-
defense] claim, before that defense is properly at issue at
trial, there must be some evidence, from whatever source
to justify a finding of self-defense. If there is any evidence
that will support the claim, then the issue is properly before
the fact finder.
Commonwealth v. Smith, 97 A.3d 782, 787 (Pa.Super. 2014) (internal
citations omitted); see also Commonwealth v. Bullock, 948 A.2d 818, 824
(Pa.Super. 2008) (same).
Once a defendant puts self-defense at issue, the burden is on the
Commonwealth to prove beyond a reasonable doubt that the defendant’s act
was not justifiable self-defense. See Commonwealth v. McClendon, 874
A.2d 1223, 1229–30 (Pa.Super. 2005).
The Commonwealth sustains this burden if it establishes at least
one of the following: 1) the accused did not reasonably believe
that he was in danger of death or serious bodily injury; or 2) the
accused provoked or continued the use of force; or 3) the accused
had a duty to retreat and the retreat was possible with complete
safety.
Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa.Super. 2008)
(quoting McClendon, supra at 1230). The Commonwealth need establish
only one of these three elements beyond a reasonable doubt to insulate its
case from a self-defense challenge to the evidence. Commonwealth v.
Burns, 765 A.2d 1144, 1149 (Pa.Super. 2000). Accordingly, the
Commonwealth can negate a self-defense claim if it proves that the defendant
did not reasonably believe he was in imminent danger of death or great bodily
injury. Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012).
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Here, Appellant put self-defense at issue through his own testimony,
whereby he told the jury that he shot and killed Devon Robinson after a
member of Robinson’s group pointed a gun at members of his group and he
was “sucker punched” in the head. N.T. Jury Trial, 7/12/13, at 900-02, 909-
10. The punch knocked him to the ground and left him scared and disoriented.
Id. at 914. Appellant did not realize what he had done until after he had
already fired the second shot into Robinson’s head. Id. at 918. Afterwards,
Appellant fled from the scene, discarded the firearm, cut his hair, and took a
bus to New York. Id. at 911, 944-47. Appellant asserted that he lied to the
police about having a gun and shooting Robinson because he was afraid that
the police would not be able to protect him from the “Bloods” street gang. Id.
at 904, 912-13.
In contrast, the Commonwealth put forth eyewitness testimony and
surveillance footage that showed that after being punched in the head,
Appellant stood up and began to chase Robinson while brandishing a gun.
During the chase, Appellant shot Robinson once in the back, causing him to
fall to the ground. Appellant than stood over the unarmed victim and
deliberately shot him once in the head before fleeing the scene. The
eyewitness testimony and surveillance footage was corroborated by the
Commonwealth’s forensic pathologist who opined that the angle and range of
the gunshot wound to Robinson’s head was consistent with the shooter
standing directly above him. See N.T. Jury Trial 7/10/13, at 272-75, 278-79.
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Viewing the facts in the light most favorable to the Commonwealth, the
PCRA court did not err when it found that the Commonwealth presented ample
evidence to disprove that Appellant acted in self-defense. Indeed, chasing
after a fleeing and unarmed Robinson, coupled with the locations of both
gunshot wounds to the victim, contradicts Appellant’s self-defense claims.
Accordingly, appellate counsel was not ineffective when he failed to pursue a
sufficiency claim on appeal. See Commonwealth v. Williams, 980 A.2d
510, 525 (Pa. 2009) (“[A]ppellate counsel cannot be deemed ineffective for
failing to raise [a] meritless claim on appeal.”); see also Rule 907 Notice,
2/7/19, at 2. No relief is due on Appellant’s first issue.
In Appellant’s second and final claim, he asserts that PCRA counsel was
ineffective for failing to raise meritorious claims on the false grounds that
discovery had not been provided to him. See Appellant’s brief at 13-16.
Stated simply, Appellant has misstated the record. For almost two years,
PCRA counsel filed multiple requests for pre-trial discovery, indicating that he
could not effectively represent Appellant without it. However, counsel
acknowledged that he had received and reviewed discovery in the first
sentence of his Turner/Finley letter. See Turner/Finley Letter, 12/31/18,
at 1. PCRA counsel indicated that he had filed the letter because the claims
that Appellant wished to raise in his PCRA petition were meritless, not because
he did not have pre-trial discovery. Id. at 4. Accordingly, no relief is due on
Appellant’s second allegation of ineffectiveness.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/21
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