Com. v. Almanzar, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ELIEZER ALMANZAR :
:
Appellant : No. 1100 MDA 2019
Appeal from the PCRA Order Entered April 26, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000294-2014
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JULY 31, 2020
Appellant, Eliezer Almanzar, appeals from the order entered on April 26,
2019 denying his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial of PCRA
relief, Appellant's court-appointed counsel filed an application to withdraw and
a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). Upon review, we grant counsel’s petition to withdraw and affirm the
order denying Appellant's PCRA petition.
We briefly summarize the facts and procedural history of this case as
follows. On December 29, 2014, a jury convicted Appellant of one count each
of involuntary deviate sexual intercourse (IDSI) with a child, aggravated
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indecent assault of a child, and corruption of minors. 1 The convictions
stemmed from an incident, on September 7, 2013, wherein Appellant licked
the vagina of the four-year-old daughter of Appellant’s then-girlfriend.2
Following Appellant’s convictions, the trial court sentenced Appellant to six to
12 years of incarceration for IDSI and to a concurrent term of five to 10 years
of incarceration for corruption of minors. Appellant’s conviction for
aggravated indecent assault merged with IDSI for sentencing purposes. We
affirmed Appellant’s judgment of sentence in an unpublished memorandum
filed on July 20, 2016. Commonwealth v. Almanzar, 154 A.3d 862 (Pa.
Super. 2016) (unpublished memorandum). Pertinent to this appeal, the prior
panel, among other things, determined that Appellant’s confession to police
was voluntary and not coerced and, therefore, suppression of his statements
was unwarranted. On April 25, 2017, our Supreme Court denied further
appellate review. Commonwealth v. Almanzar, 168 A.3d 1275 (Pa. 2017).
On October 3, 2017, Appellant filed a timely PCRA petition. The PCRA
court held a hearing on August 30, 2018. On April 26, 2019, the PCRA court
denied relief by order and accompanying opinion. Following some confusion
regarding Appellant’s representation and filing deadlines, the PCRA court
ultimately reinstated Appellant’s right to file an appeal nunc pro tunc on June
____________________________________________
1 18 Pa.C.S.A. §§ 3123(b), 3125(b), and 6301(a)(1)(ii), respectively.
2 Relevant to this appeal, Appellant confessed to police that the incident
occurred.
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26, 2019. The Commonwealth did not oppose reinstatement of Appellant’s
appeal rights. This timely appeal resulted.3
Prior to addressing the merits of the issues raised on appeal, we must
determine whether counsel met the procedural requirements necessary to
withdraw. Counsel seeking to withdraw in PCRA proceedings
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the [PCRA] court, or brief on
appeal to this Court, detailing the nature and extent of counsel's
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel's petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy
the technical demands of Turner/Finley, the court — [the PCRA]
court or this Court — must then conduct its own review of the
merits of the case. If the court agrees with counsel that the claims
are without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)
(citations and original brackets omitted). Here, counsel fulfilled all of the
____________________________________________
3 On July 3, 2019, Appellant filed a counseled notice of appeal. On August 15,
2019, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on September 5, 2019. On December 12, 2019, the trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) that largely relied upon its earlier
opinion dated April 26, 2019.
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procedural requirements necessary to withdraw as PCRA counsel.4 Thus, we
turn to analyze the merits of the claims raised in the Turner/Finley letter
filed by counsel..
Appellant claims that trial counsel was ineffective for failing to: (1)
authenticate text messages and photographs to undermine the testimony of
the victim’s mother, by showing she initially believed Appellant was innocent,
and; (2) present a hygiene defense.
This Court's standard of review regarding an order dismissing a petition
under the PCRA is:
whether the determination of the PCRA court is supported by
evidence of record and is free of legal error. In evaluating a PCRA
court's decision, our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the [PCRA hearing] level.
We may affirm a PCRA court's decision on any grounds if it is
supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (citations
omitted). “The PCRA court's credibility determinations, when supported by
the record, are binding; however, [appellate courts apply] a de novo standard
of review to the PCRA court's legal conclusions.” Commonwealth v.
Montalvo, 205 A.3d 274, 286 (Pa. 2019).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
____________________________________________
4 We note that, on May 18, 2020, Appellant filed a pro se response to counsel’s
Turner/Finley brief. We will briefly address Appellant’s pro se contentions
later.
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resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is 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).
This Court has previously determined:
The law presumes counsel has rendered effective assistance. The
burden of demonstrating ineffectiveness rests on [a petitioner].
To satisfy this burden, [a petitioner] must plead and prove by a
preponderance of the evidence that: (1) his underlying claim is of
arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceeding would have been different. Failure to satisfy any prong
of the test will result in rejection of the [petitioner's] ineffective
assistance of counsel claim.
Commonwealth v. McGarry, 172 A.3d 60, 70 (Pa. Super. 2017) (internal
citations and quotations omitted).
Here, the PCRA court determined, in light of Appellants’ confession to
police, that Appellant failed to prove prejudice with respect to either of his
claims alleging ineffective assistance of counsel. The recorded police interview
was played for the jury. N.T., 9/9/2014, at 141- 142. As such, the PCRA
court determined that failing to authenticate and present text messages
between Appellant and the victim’s mother following the incident, in an effort
to undermine the witness’ credibility, and failing to present a hygiene defense
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would not have changed the outcome of the case. We agree. In light of
Appellant’s admission to police that he committed the crimes at issue, trial
counsel did not render ineffective assistance of counsel for failing to challenge
the credibility of the victim’s mother or failing to present a hygiene defense.
Accordingly, we affirm the PCRA court’s order denying relief.
Additionally, as noted earlier, Appellant filed a pro se response to
counsel’s Turner/Finley no merit letter. Appellant’s response does not alter
our determination. In his response, Appellant again raised the two ineffective
assistance claims addressed above, which we determined lack merit.
Furthermore, Appellant suggests that his statements to police were coerced,
thereby rendering the PCRA court’s reliance upon his confession flawed. See
Pro Se Response, 5/18/2020, at 21 (“Jurors today are aware that the police
sometimes engage in coercive tactics that lead innocent defendants to
inculpate themselves. The tactics used in this case were distinctly designed to
provoke an admission of guilt.”); Id. at 23 (“When viewed against the
backdrop of how the confession was extracted the confession itself does not
carry as much weight as the PCRA [c]ourt contends.”). Notwithstanding,
Appellant’s PCRA petition never included a claim alleging that trial counsel
was ineffective in failing to raise, or failing to properly litigate, a claim
asserting that Appellant’s confession to the police was coerced. Moreover,
Appellant never sought to amend his PCRA petition to include this specific
claim. “Where the petitioner does not seek leave to amend his petition after
counsel has filed a Turner/Finley no-merit letter, the PCRA court is under no
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obligation to address new issues.” Commonwealth v. Rigg, 84 A.3d 1080,
1085 (Pa. Super. 2014). In addition, this Court may not review an issue for
the first time on appeal. See Pa.R.A.P. 302(a). Thus, the confession-related
claims raised in Appellant’s Turner/Finley response were not properly
preserved for our review. Finally, a PCRA petitioner must establish that issues
presented under the PCRA have not been previously litigated or waived. See
42 Pa.C.S.A. § 9543(a)(3). Here, as previously mentioned, trial counsel
sought the suppression of Appellant’s statements made to police. Thereafter,
on direct appeal, a prior panel of this Court determined that police did not
subject Appellant to a custodial interrogation and that his subsequent
confession was voluntary and not coerced. See Commonwealth v.
Almanzar, 154 A.3d 862 (Pa. Super. 2016) (unpublished memorandum) at
*11. Hence, the constitutional validity of Appellant’s confession was
previously litigated and, therefore, not subject to attack in the context of
collateral proceedings.
Moreover, after conducting our own review, we find that there are no
meritorious claims. As such, we affirm the dismissal of Appellant’s PCRA
petition and grant counsel's application to withdraw.
Order affirmed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/31/2020
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