Com. v. Luciano-Herrera, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSE LUCIANO-HERRERA :
:
Appellant : No. 1773 WDA 2019
Appeal from the PCRA Order Entered October 31, 2019
in the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000534-2010
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 22, 2021
Jose Luciano-Herrera (“Luciano-Herrera”)1 appeals, pro se, from the
Order dismissing his Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”).2 We affirm.
On February 28, 2010, the body of Jose Medina (“Medina”) was
discovered on the railroad tracks between Youngstown Street and Strabane
Avenue, in Canonsburg, Pennsylvania. Canonsburg police officers, as well as
two paramedics, responded to the scene. The police observed wounds to
Medina’s neck and chin. The police officers called Canonsburg Police
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1The appellant’s name is listed as “Luciano-Herrera” and as “Herrera-Luciano”
at various points throughout the record. However, on all pro se appellate
documents, Luciano-Herrera refers to himself as “Luciano-Herrera.”
2 42 Pa.C.S.A. §§ 9541-9546.
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Detectives Alexander Coghill (“Detective Coghill”) and Sergeant Charles
Tenney (“Detective Tenney”) (collectively, the “Detectives”) to investigate. A
subsequent autopsy revealed that Medina’s death was a homicide caused by
38 stab and incised wounds to the neck.
During the course of the investigation, Canonsburg Police interviewed
Samuel Cruz (“Cruz”), who lived in the same rooming house as Luciano-
Herrera and worked for the same concrete firm. Cruz indicated that he and
Luciano-Herrera had been with Medina on the railroad tracks, and that
Luciano-Herrera had stabbed Medina several times. Afterwards, Cruz and
Luciano-Herrera went out drinking.
On March 4, 2010, Pennsylvania State Trooper Anthony Leibhart
(“Trooper Leibhart”) executed a search warrant at Shannon Rae Perez Lucas’s
apartment, where Luciano-Herrera was staying. During the search, Trooper
Leibhart obtained Luciano-Herrera’s gray work sweater.
The Canonsburg Police submitted the gray sweater, along with the black
sweater that Medina was wearing, to Greensburg Regional Forensic Laboratory
(“GRSL”) for testing and examination. Testing revealed that Medina’s blood
was “observed” in thirteen areas of Luciano-Herrera’s gray sweater, and
“confirmed” in five areas. Testing further revealed that the size of the stain
on Luciano-Herrera’s gray sweater was in “agreement” with the blood pattern
observed on Medina’s black sweater. Ashlee Mangan, a forensic serologist at
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GRSL, concluded that the blood stains on Luciano-Herrera’s gray sweater were
of the same size and shape as the blood pattern on Medina’s black sweater.
On March 4, 2010, the police interviewed Luciano-Herrera about
Medina’s murder. The Detectives, and Pennsylvania State Police Trooper
Raymond Quiroz, Jr. (“Trooper Quiroz”), conducted the interview. Trooper
Quiroz asked investigatory questions of his own, acted as a Spanish-English
translator for Luciano-Herrera, and translated questions asked by the
Detectives. During the first hour of the interview, which was recorded and
transcribed, Luciano-Herrera was given his Miranda3 rights in Spanish, and
he waived his rights.
Initially, Luciano-Herrera denied that he was ever at the train tracks that
night with Cruz and Medina. After further questioning by the police, Luciano-
Herrera stated that Medina had hit him and threatened to kill him in the past.
Luciano-Herrera continued to deny that he had killed Medina, but admitted
that he had struck Medina several times. Luciano-Herrera insisted that Cruz
had actually stabbed and killed Medina. Luciano-Herrera stated that he was
scared and held Medina while Cruz stabbed Medina.
At some point during the interview, Luciano-Herrera indicated that he
wanted an attorney present. After a couple of minutes, Luciano-Herrera
indicated that he wanted to continue speaking with police, but only if the
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3 Miranda v. Arizona, 384 U.S. 436 (1966).
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recording device was turned off. During this second, unrecorded, statement,
Luciano-Herrera demonstrated how he held Medina during the stabbing,
admitted that he had stabbed Medina in the leg, and stated that he had heard
gurgling sounds coming from Medina’s throat and mouth.
On November 5, 2010, Luciano-Herrera filed an Omnibus Pre-Trial
Motion alleging, inter alia, that Luciano-Herrera’s due process and Miranda
rights had been violated because Trooper Quiroz lacked certification to act as
a translator, was an investigator on the case, and had continued to question
him after Luciano-Herrera had asked for an attorney. After a hearing, the trial
court denied Luciano-Herrera’s Motion.
On March 4, 2011, after a bench trial, Luciano-Herrera was found guilty
of murder in the first degree and conspiracy.4 On May 12, 2011, the trial court
sentenced Luciano-Herrera to life in prison without the possibility of parole.
On June 20, 2013, this Court affirmed Luciano-Herrera’s judgment of
sentence, and the Pennsylvania Supreme Court denied Luciano-Herrera’s
Petition for allowance of appeal. See Commonwealth v. Luciano-Herrera,
82 A.3d 465 (Pa. Super. 2013) (unpublished memorandum), appeal denied,
77 A.3d 636 (Pa. 2013).
On March 24, 2014, Luciano-Herrera filed a timely, pro se, PCRA
Petition. After multiple postponements and changes of counsel, Luciano-
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4 18 Pa.C.S.A. §§ 2502(a), 903(a)(1).
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Herrera elected to proceed pro se. On August 12, 2019, the PCRA court filed
a Pa.R.Crim.P. 907 Notice of Intent to Dismiss Luciano-Herrera’s Petition
without a hearing. Luciano-Herrera filed timely Objections, and on October
29, 2019, the PCRA court dismissed Luciano-Herrera’s Petition.
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Luciano-Herrera filed a timely Notice of Appeal5 and court-ordered
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
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5 Luciano-Herrera’s pro se Notice of Appeal is dated November 21, 2019. The
docket reflects that his Notice of Appeal was not filed until December 2, 2019,
outside of the 30-day time limit to appeal. See Pa.R.A.P. 903(a) (providing
that “the notice of appeal … shall be filed within 30 days after the entry of the
order from which the appeal is taken”). However, Luciano-Herrera was in
prison at the time that he filed his Notice of Appeal, and is therefore entitled
to the benefit of the “prisoner’s mailbox rule.” See Commonwealth v.
Perez, 716 A.2d 1287, 1289 (Pa. Super. 1998) (applying the prisoner mailbox
rule to notices of appeal). Under this rule, submissions from an incarcerated
litigant are deemed to be filed when deposited into the prison mailing system
or handed over to prison officials for mailing. Pa.R.A.P. 121(f); see also
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).
There is no additional documentation indicating when Luciano-Herrera
submitted his Notice of Appeal to prison officials to be mailed. However, “[this
Court] is inclined to accept any reasonably verifiable evidence of the date that
the prisoner deposits the appeal with the prison authorities.”
Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (emphasis
added). Instantly, on November 26, 2019, the PCRA court issued, most likely
in response to receiving Luciano-Herrera’s Notice of Appeal, its Pa.R.A.P.
1925(b) Concise Statement Order before the 30-day appeal period had
passed. Moreover, we note that the Thanksgiving holiday was on November
28, 2019, which made Luciano-Herrera’s final date to file an appeal November
29, 2019. See 1 Pa.C.S.A. § 1908 (providing that “[w]henever the last day
of any such period shall fall on … any day made a legal holiday by the laws of
this Commonwealth or the United States, such day shall be omitted from the
computation.”); see also Commonwealth v. Betts, 240 A.3d 616, 619 n.5
(Pa. Super. 2020) (considering holiday-related mail delays in prisoner mailbox
rule time computations); Commonwealth v. Patterson, 931 A.2d 710, 714
(Pa. Super. 2007) (concluding that a pro se submission that arrived late for
filing by three days, where the two following days fell on a weekend, was
presumed timely despite a lack of supporting documentation based on the
date of delivery). Given the inherent delays associated with mail delivery, and
the totality of the circumstances, we will deem the appeal timely filed.
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Luciano-Herrera now presents the following claim for our review: “The
[PCRA] court abused its discretion when it dismissed [Luciano-Herrera’s PCRA
P]etition.” Brief for Appellant at 3 (some capitalization omitted).6
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of the record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Counsel is presumed to be effective, and “the burden of demonstrating
ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant 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 appellant’s ineffective
assistance of counsel claim.
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6 We observe that Luciano-Herrera raises two distinct claims pertaining to
counsel’s ineffectiveness in the Argument section of his appellate brief, which
are not preserved in his Statement of Questions Involved, as is required by
Pa.R.A.P. 2116(a). See Commonwealth v. Ivy, 146 A.3d 241, 254 (Pa.
Super. 2016) (stating that failure to raise an issue in the statement of
questions involved waives the issue on appeal) (citing Pa.R.A.P. 2116(a)).
Nevertheless, we decline to find Luciano-Herrera’s claims waived because the
PCRA court was able to address his claims in its Opinion. See PCRA Court
Opinion, 1/14/20, at 1-9.
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Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations omitted).
In his first claim, Luciano-Herrera contends that his trial counsel
rendered ineffective assistance of counsel by failing to call a DNA expert to
examine the blood and hairs found at the crime scene. Brief for Appellant at
7-8. Luciano-Herrera claims that he was prejudiced by his trial counsel’s
failure to hire a DNA expert to rebut the Commonwealth’s DNA expert. Id. at
7-8.
“Where a claim is made of counsel’s ineffectiveness for failure to call
witnesses, it is the appellant’s burden to show that the witness existed and
was available[.]” Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa.
2011). Further, appellant must prove that “counsel was aware of, or had a
duty to know of the witness; the witness was willing and able to appear; and
the proposed testimony was necessary in order to avoid prejudice to the
appellant.” Id. “The mere failure to obtain an expert [] witness is not
ineffective[ assistance of counsel.]” Id.Luciano-Herrera has failed to adequately develop this claim for our
review. At no point in the PCRA proceedings, nor before this Court, has
Luciano-Herrera identified any alleged DNA expert, the availability of any
alleged expert, the alleged duties of trial counsel, or how such an expert’s
testimony would have avoided prejudice to Luciano-Herrera. See Chmiel,
supra; see also Commonwealth v. Paddy, 14 A.3d 431, 443 (Pa. 2011)
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(providing that “boilerplate allegations and bald assertions … cannot satisfy a
petitioner’s burden to prove that counsel was ineffective.”). Accordingly,
Luciano-Herrera’s first claim is waived.
Even if Luciano-Herrera had preserved this claim for our review, the
PCRA court addressed it as follows:
In his closing, defense counsel admitted that [Medina]’s
blood was on [Luciano-Herrera]’s sweater and that such evidence
was consistent with the testimony of [Luciano-Herrera]. [Luciano-
Herrera] testified at trial “[b]oth [Medina and Cruz] fell on top of
me.” Then he saw Cruz stabbing the victim.
***
Since [Luciano-Herrera] admitted to his counsel, to the
police, and to the [c]ourt that he had [Medina]’s blood on his
clothing, a separate DNA test would be unnecessarily duplicative.
Similarly, [Luciano-Herrera] and [Medina] were on the ground
together and any hair evidence would be neither exculpatory [n]or
inculpatory. [Luciano-Herrera] did not establish that the claim
had any merit and [trial counsel] was not ineffective for not
pursuing a groundless claim.
PCRA Court Opinion, 1/14/20, at 5-6.
Our review of the record confirms the PCRA court’s conclusion. See N.T.
(Non-Jury Trial Volume 2), 3/2-4/11, at 300-03 (wherein Luciano-Herrera
testified that he was beneath Medina while Cruz stabbed Medina, and that
Medina’s blood was on his clothing). Thus, Luciano-Herrera has failed to
demonstrate that his claim has arguable merit. See Chmiel, supra; see also
Holt, supra. Based upon the foregoing, we cannot grant Luciano-Herrera
relief on this claim.
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In his second claim, Luciano-Herrera claims that his counsel rendered
ineffective assistance by failing to argue and preserve, prior to trial, a due
process argument that Trooper Quiroz was improperly acting as both a
translator and investigator during his interrogation. Brief for Appellant at 9-
15. In particular, Luciano-Herrera asserts that Trooper Quiroz’s participation
as both a translator and an investigator cannot be permitted because “of the
potential for bias.” Id. at 10. In support, Luciano-Herrera argues that, in
translating Luciano-Herrera’s Spanish responses into English, Trooper Quiroz
misrepresented what Luciano-Herrera said, and would ask him questions in
Spanish that the Detectives did not ask in English.7 Id. at 11-15.
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7 We note that Luciano-Herrera, in his appellate brief, almost entirely
abandons his ineffective assistance of counsel claim and primarily argues that
his claim was not previously addressed by this Court on his direct appeal. See
Brief for Appellant at 10-15; see also Commonwealth v. Luciano-Herrera,
82 A.3d 465 (Pa. Super. 2013) (unpublished memorandum at 13-15)
(concluding that Luciano-Herrera had waived his claim that Trooper Quiroz
should not have acted as a translator and investigator for failure to cite
relevant case law).
Nevertheless, in the instant appeal, Luciano-Herrera has claimed his trial
counsel rendered ineffective assistance of counsel by failing to argue and
preserve due process and exclusionary rule claims with regard to Trooper
Quiroz acting as a translator. See Commonwealth v. Collins, 888 A.2d 564,
570-71 (Pa. 2005) (providing that a PCRA claim of ineffective assistance of
counsel raises a distinct legal ground, rather than an alternative theory in
support of the same underlying issue that was raised on direct appeal, and,
thus, ineffectiveness claims are distinct from previously litigated issues and
may be brought in PCRA proceedings). Accordingly, Luciano-Herrera’s
ineffective assistance of counsel claim has not been previously litigated, and
we will address the merits of that claim.
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“[W]here a defendant alleges that counsel ineffectively failed to pursue
a suppression motion, the inquiry is whether the failure to file the motion itself
is objectively unreasonable, which requires a showing that the motion would
be meritorious.” Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa.
Super. 2018). “[T]he defendant must establish that there was no reasonable
basis for not pursuing the suppression claim and that if the evidence had been
suppressed, there is a reasonable probability that the verdict would have been
more favorable.” Commonwealth v. Melson, 556 A.2d 836, 839 (Pa. Super.
1989).
Instantly, the record belies Luciano-Herrera’s claim. As the PCRA court
noted, Luciano-Herrera’s trial counsel did, in fact, file an Omnibus Pre-Trial
Motion, which included a due process argument that Trooper Quiroz
improperly acted as a translator where he was also an investigator on the
same case. See Omnibus Pre-Trial Motion, 11/5/10, at 1-3 (unnumbered);
see also PCRA Court Opinion, 1/14/20, at 7-8 (wherein the PCRA court
summarizes the contents of the Omnibus Pre-Trial Motion). Moreover,
throughout the trial, Luciano-Herrera’s trial counsel objected several times to
Trooper Quiroz’s testimony regarding Luciano-Herrera’s interview. See N.T.
(Non-Jury Trial Volume 1), 3/1/11, at 6-10 (wherein trial counsel placed a
continuing objection to Trooper Quiroz’s testimony based upon the assertion
that Trooper Quiroz was an improper translator); see also id. at 159-72
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(wherein trial counsel renewed his objection). Accordingly, Luciano-Herrera’s
claim lacks merit.
Based on the foregoing, we affirm the PCRA court’s Order dismissing his
PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2021
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