Com. v. Mueses Popote, R.

J-S54021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAFAEL MUESES POPOTE :
:
Appellant : No. 1079 MDA 2020
Appeal from the PCRA Order Entered July 28, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004731-2015
BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 1, 2021
Rafael Mueses Popote appeals from the order denying his Post
Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546.
Popote argues that the PCRA court erred in denying his claim that his trial
counsel was ineffective for failing to call character witnesses. We affirm.
In 2015, Popote was arrested and charged with one count each of
Corrupt Organizations and Conspiracy to Commit Corrupt Organizations,
nineteen counts each of Dealing in Proceeds of Unlawful Activities, Criminal
Use of a Communication Facility, Possession With Intent to Deliver a
Controlled Substance, Possession of a Controlled Substance, and Conspiracy
to Commit Possession of a Controlled Substance, and seven counts of
J-S54021-20
Conspiracy to Commit Possession With Intent to Deliver a Controlled
Substance.1
The PCRA court summarized some of the evidence presented at trial:
In January of 2015, the Reading Police Department became
involved with a Pennsylvania State Police (“PSP”)
investigation into a large-scale narcotic trafficking operation
in the area of Berks County and reaching into Schuylkill
County. Initially, the investigation focused on an individual
named Nelson Guzman, who the PSP were notified through
confidential sources, was trafficking in methamphetamine in
the Reading, Pennsylvania area through an organization.
Through several controlled buys with Mr. Guzman, and
information provided through confidential informants,
investigators became aware that Mr. Guzman was dealing
in a variety of narcotics, including methamphetamine,
heroin, marijuana, and cocaine.
Once enough information was compiled, investigators
applied for a wiretap of Mr. Guzman’s cell phone, which was
approved. Through the wiretap, investigators discovered
that another individual named Erick Nunez, was supplying
cocaine to Mr. Guzman. Additional intercepts on Mr. Nunez’s
phone and subsequent surveillance led investigators to
identify that Mr. Nunez was receiving cocaine from [Popote].
As part of the investigation, law enforcement also received
authorization to wiretap two cell phone numbers associated
with [Popote]. One of the cell phones was registered to
[Popote]. The other cell phone was registered to a default
address for the prepaid cell phone company. However,
investigators were able to link the second cell phone to
[Popote] through recognition of his voice on other calls,
internal conversation references, and through surveillance.
During the course of the investigative operation, law
enforcement intercepted between 8,000 and 11,000 voice
calls and text messages throughout the organization. At the
conclusion of the investigation, more than twenty
____________________________________________
118 Pa.C.S.A. §§ 911(b)(1), 911(b)(4), 5111(a)(1), and 7512(a), 35 P.S. §
780-113(a)(30) and 780-113(a)(16), and 18 Pa.C.S.A. § 903(a)(1).
-2-
J-S54021-20
individuals involved in the drug trafficking organization were
arrested and charged.
Trial Court Opinion, filed July 27, 2020, at 1-2.
At trial “along with testimony of the above-mentioned facts,” the
Commonwealth entered into evidence “eleven recordings . . . of intercepted
phone calls in which [Popote] was allegedly a participant, implicating his
involvement in the narcotics trafficking organization.” Id. at 2. Further, “[t]he
Commonwealth . . . called two of [Popote’s] co-defendants in the organization
who testified as to [Popote’s] involvement and identified [Popote’s] voice on
the recorded evidence.” Id.
In February 2017, the jury convicted Popote of the above-listed
offenses. The trial court sentenced Popote to 26 to 55 years’ incarceration,
followed by 22 years of supervised probation. Popote filed a timely post
sentence motion, which the trial court denied. Popote appealed, and, in
November 2018, this Court affirmed the judgment of sentence. Popote did not
file a petition for allowance of appeal with the Pennsylvania Supreme Court.
In August 2019, Popote filed a counseled PCRA petition, alleging his trial
counsel was ineffective for failing to call character witnesses. The PCRA court
held a hearing.
Popote presented the testimony of his girlfriend, Paola Montanez, who
testified that she has known Popote for ten years and has known Popote’s
reputation in the community to be that of an excellent citizen. N.T., 3/10/20,
at 6-7. Montanez stated that if she had been called to testify at trial, her
testimony would have been similar to that given at the PCRA hearing. Id. at
-3-
J-S54021-20
7. On cross examination, Montanez testified that she did speak with Popote
over the phone and knew what his voice sounded like on the phone. Id. at 8.
Popote then entered into evidence a stipulation in which the parties
agreed that the eleven witnesses that were present at the evidentiary hearing
were ready and willing to testify and that each individual’s testimony would
be consistent with that of Montanez as to Popote’s reputation and their
availability to testify at trial. Id. at 10-11.
Trial counsel testified that, for Popote’s trial, he reviewed the
Commonwealth’s evidence, the bulk of which was wiretap recordings,
including the phone calls that were alleged to implicate Popote. Id. at 12.
Counsel determined that because the Commonwealth could not present an
exemplar of Popote’s voice, and did not have scientific evidence to
demonstrate that it was Popote’s voice on the recordings, the best course of
action would be to deny that Popote’s voice was on the phone calls. Id. at 13.
Counsel recommended that Popote retain an audiology expert, but this
strategy was too expensive, and the decision was made to move forward with
the strategy, without the expert. Id.
Counsel also said he considered calling character witnesses but rejected
the idea and did not discuss it with Popote because character witnesses would
be subject to questions on cross-examination about whether they recognized
Popote’s voice on the wiretap recordings. Id. at 14-15. Counsel noted that the
Commonwealth had recordings of phone calls between Popote and Montanez
from when Popote was in prison on the basis of which Montanez could identify
-4-
J-S54021-20
Popote’s voice. Id. at 15. Counsel further testified that the extent of
Commonwealth’s evidence indicated that the case was more than a mere
credibility dispute in which character testimony might be helpful. Id. at 15.
On cross-examination, counsel acknowledged that he was aware that
Popote had no prior criminal record and that he could call character witnesses
to testify on Popote’s behalf, which might present Popote to the jury in a better
light. Id. at 16-17. He further acknowledged that in some cases character
testimony may create reasonable doubt and such testimony would be
accompanied by an instruction from the court to that effect. Id. at 17. Counsel
also admitted that he did not review the recorded phone call evidence with
potential character witnesses to determine whether the witnesses could
identify Popote’s voice on the phone calls. Id. at 19-21. Counsel explained
that he felt that the benefits of calling character witnesses were outweighed
by the risk that the witnesses could be asked to identify Popote’s voice on the
recorded evidence. Id. at 22.
The PCRA court denied the petition, and Popote appealed.2 He raises the
following issue: “Whether the [PCRA] court erred in denying [Popote’s] [PCRA]
petition where trial counsel was ineffective for failing to present character
witnesses?” Popote’s Br. at 5.
____________________________________________
2On August 11, 2020, Popote filed a pro se appeal, which this Court docketed
at 1044 MDA 2020. On August 13, 2020, Popote’s counsel filed a notice of
appeal of the same PCRA order, which is the instant appeal. In September
2020, counsel filed a motion to withdraw the pro se appeal, which we granted,
because the pro se appeal was duplicative of the instant appeal.
-5-
J-S54021-20
On appeal from the denial of PCRA relief, our task is to determine
“whether evidence of record supports the findings of the PCRA court and
whether its legal conclusions are free of error.” Commonwealth v. Burton,
121 A.3d 1063, 1067 (Pa.Super. 2015) (en banc).
Courts presume that counsel is effective. Commonwealth v. Daniels,
963 A.2d 409, 427 (Pa. 2009). To overcome this presumption, a petitioner
must establish three things: (1) the underlying claim has arguable merit, (2)
counsel had no reasonable strategic basis for his or her action or inaction, and
(3) the petitioner has been prejudiced by counsel's error. Commonwealth v.
Washington, 927 A.2d 586, 594 (Pa. 2007). “[W]here matters of strategy
and tactics are concerned, counsel's assistance is deemed constitutionally
effective if he chose a particular course that had some reasonable basis
designed to effectuate his client’s interests.” Commonwealth v. Puksar, 951
A.2d 267, 277 (Pa. 2008) (quoting Commonwealth v. Miller, 819 A.2d 504,
517 (Pa. 2002)). Prejudice is established where the appellant shows that “but
for the act or omission in question, the proceeding’s outcome would have been
different.” Commonwealth v. Small, 980 A.2d 549, 559 (Pa. 2009).
Popote argues that the proposed character witnesses were ready,
willing, and able to testify at trial. He claims that if they had testified, the jury
would have heard positive testimony about him, and the court would have
given a jury instruction that character evidence alone may raise a reasonable
doubt. Popote’s Br. at 11. He further claims the decision to not present
character testimony was not based on a reasonable trial strategy, noting
-6-
J-S54021-20
counsel did not discuss with Popote the possibility of calling witnesses, and
that counsel did not ask the witnesses to listen to the tapes to determine
whether they knew if the voice on the tape was Popote’s voice. Popote further
claims the Commonwealth would not have asked, or would not have been
permitted to ask, whether the witnesses recognized the voice. He claims the
testimony would have impacted the outcome of trial, because, if counsel had
presented the testimony, the jury would have had this “critical information
and a jury instruction from the judge that could have resulted in a not guilty
verdict.” Id. at 13.
The PCRA court concluded that Popote did not satisfy his burden of
showing his counsel was ineffective. It concluded the testimony and affidavits
did not establish the witnesses were available at the time of trial, and that
Popote did not present evidence that counsel knew or should have known of
the witnesses. Trial Ct. Op. at 8. It further found that Popote failed to
demonstrate that counsel’s decision lacked a reasonable basis or that he
suffered prejudice because counsel did not call character witnesses. Id. The
court reasoned:
[Counsel] testified at the PCRA hearing that he had
observed tactics used in earlier related cases and decided
that the best strategy would be a denial that [Popote] was
the individual whose voice was presented on the recorded
evidence. [Counsel] cited the fact that the bulk of the
evidence on the case was wiretap recordings, but that there
was no scientific evidence linking [Popote] to the voice
recordings, the Commonwealth presented no exemplars of
[Popote’s] voice, and the only testimony regarding
identification of the voice on the recordings was that of
-7-
J-S54021-20
police officers. [Counsel] discussed the strategy with
[Popote] and [] Montanez and suggested that they hire an
audiology expert, but that the cost was too prohibitive.
Furthermore, at trial, [counsel] repeatedly cross-examined
the Commonwealth’s witnesses as to the identification of
[Popote’s] voice on the recordings. [Counsel] then stated
that he did not want to present any character witnesses as
such a decision may have exposed those witnesses to
identification of [Popote’s] voice on the recordings on cross-
examination by the Commonwealth.
[Popote] claims that [counsel’s] fear regarding the scope of
cross examination of the character witnesses is misplaced
and that his caution amounts to ineffective representation
since he could have requested that the scope of cross-
examination be limited. However, we find this argument
unconvincing in two aspects. First, we fail to see how such
a motion seeking to limit the scope of cross-examination
would have been successful in proscribing the
Commonwealth from questions regarding the witnesses’
knowledge or identification of [Popote’s] voice. “The scope
of cross examination is a matter within the trial court's
discretion.” Commonwealth v. Hoover, 16 A.3d 1148,
1150 (Pa.Super. 2011). Certainly, the Commonwealth
would be prohibited from cross-examining [Popote’s]
character witnesses regarding any uncharged criminal
allegations or even past behavior leading to an arrest but
not a conviction. Nevertheless, the Commonwealth is not so
restrained in cross-examination to attack the credibility of
the character witness, either in the accuracy of their
testimony or the standard by which they measure
reputation. Commonwealth v. Morgan, 739 A.2d 1033,
1036 (Pa. 1999). As noted, “the actual purpose of the cross-
examination [of a character witness] is not to show
commission by the defendant of a specific crime of which he
or she is not now accused.” Adams, 626 A.2d at 1233
(emphasis added). Meanwhile, the purpose of the trial is a
determination of guilt of the defendant as to the charges
brought by the Commonwealth in the matter at hand.
Therefore, it is logical that the Commonwealth, in testing
the credibility of a witness who is presenting character
evidence of a defendant as to a pertinent trait, would be
within permissible bounds to examine whether the witness’
knowledge of the defendant is consistent with the charges
-8-
J-S54021-20
brought forth instantly. The caution with which [counsel]
proceeded was to avoid the possibility that the
Commonwealth could cross-examine a character witness
regarding the identification of [Popote’s] voice in relation to
the charges brought forth in this action. We see no reason
why the Commonwealth would have been constrained from
such an inquiry as it could relate directly to the witness’
credibility.
Second, we find [Popote’s] assertion that it would be
unlikely for the Commonwealth to engage in such
questioning without assurance of a positive identification
from the character witness. We reject this argument
because it wholly relies on speculation of the
Commonwealth’s trial strategy, and the underlying theory is
inconsistent with the Commonwealth’s presentation of
testimony and evidence at trial. It is clear from our review
of the notes of testimony that the Commonwealth relied not
on specified expert testimony regarding the voice
identification, but on the combination of law enforcement
observation, conversations that individuals law enforcement
officers had with [Popote], and to internal references within
the recorded conversations to link the voice on the phone
calls to [Popote].
As such, we find that [counsel’s] strategy to avoid the
possibility of reinforcing the evidence is well-founded and
consistent with his trial strategy to call into question the link
between [Popote] and the voice identified by law
enforcement through the testimony and evidence. Whether
there existed an alternative strategy is not sufficient to
support a claim of ineffective assistance. “[W]e 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. Paddy, 15 A.3d 431, 442 (Pa.
2011). Moreover, “[w]e will conclude that counsel’s chosen
strategy lacked a reasonable basis only if [Popote] proves
that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Id.We find that [Popote] did not prove that presenting
character witnesses at his trial would have offered such a
potential for success.
-9-
J-S54021-20
Finally, we find that [Popote] failed to demonstrate that
there is a reasonable probability that the outcome of the
proceedings would have been different had [counsel]
presented the character witnesses presented at the PCRA
hearing. Given the evidence presented by the
Commonwealth at trial, the case did not teeter on the issue
of credibility. Instead, audio and visual evidence was
presented to the jury, along with law enforcement testimony
regarding the extent of the investigation and the
organization of which the Commonwealth alleged [Popote]
took part. Additionally, two of [Popote’s] co-defendants
testified that they participated in illegal activities with
[Popote] and identified [Popote’s] voice on the recorded
phone calls. Nonetheless, our decision does not hinge solely
on the breadth of the Commonwealth’s evidence presented
at trial, but also on the testimony as presented both at the
hearing and in the affidavits attached to the petition, which
we find lacks sufficiency to support the claim.
Id. at 10-13.
The record supports the PCRA court’s findings and it did not err in
denying Popote’s claim that his counsel was ineffective. The evidence did not
prove the witnesses were available at the time of trial or that counsel knew,
or should have known of their existence. Further, Counsel had a reasonable
basis for not calling character witnesses and Popote failed to prove prejudice,
because, even if counsel had called witnesses, the outcome of the proceeding
would not have been different.
Order affirmed.
- 10 -
J-S54021-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2021
- 11 -