Com. v. Ramos, X.

J-S26014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
XAVIER J. RAMOS
Appellant No. 1746 MDA 2016
Appeal from the PCRA Order October 11, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001648-2013
BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 23, 2017
Xavier Ramos appeals from the October 11, 2016 order denying him
PCRA relief. We affirm.
We previously set forth the facts underlying Appellant’s conviction in
our decision denying relief on direct appeal.
On July 29, 2013, the victim, M.W., was thirteen years old. She
spent the previous night sleeping on the sofa in Appellant's
house because she was babysitting for Appellant and his wife's
young child. Appellant and his wife are M.W.'s uncle and aunt.
After M.W. awoke, Appellant carried her to his bedroom, placed
her on his bed, and left. M.W. laid on the bed and watched
Appellant's children play a computer game in the bedroom.
Appellant reentered the room, laid behind M.W. on the bed and
began to “hump” her from behind by rubbing his penis against
her buttocks. He also placed his hand down M.W.'s pants and
began to move it sideways on her labia. At trial, M.W. testified
that she did not say anything at the time because she was
scared and in shock. The entire incident lasted approximately
* Former Justice specially assigned to the Superior Court.
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eight minutes after which M.W. went to the bathroom. When
M.W. returned from the bathroom, Appellant picked her up, spun
her around, and told her that he loved her.
Commonwealth v. Ramos, 135 A.3d 668 (Pa.Super. 2015) (unpublished
memorandum). Appellant’s jury trial proceeded in his absence when he
failed to appear. He was convicted of aggravated indecent assault,
corruption of minors, and indecent assault, and received an aggregate
sentence of six to fifteen years incarceration. Appellant did not seek further
review of our decision.
Appellant thereafter filed a pro se petition for PCRA relief. Appointed
counsel filed an amended petition, which was denied following an evidentiary
hearing. Appellant filed a timely notice of appeal and complied with the
PCRA court’s order to file a concise statement. The court issued its opnion in
response and the matter is now ready for our review. Appellant raises two
issues for our consideration.
I. Trial counsel was ineffective for failing to adequately
review discovery materials and to conduct independent
interviews of witnesses named in those materials.
II. Trial counsel was ineffective for failing to investigate,
develop, and present mitigating evidence at sentencing as
to Defendant’s life history and background.
Appellant’s brief at 4.
“[W]e review a denial of PCRA relief to determine whether the findings
of the PCRA court are supported by the record and free of legal error.”
Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa.Super. 2017)
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(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). Both
of Appellant’s claims allege that the PCRA court erred in not finding that trial
counsel was ineffective. To obtain relief on an ineffective assistance of
counsel claim, the PCRA petitioner must establish that “(1) the underlying
claim has arguable merit; (2) no reasonable basis existed for counsel's
action or failure to act; and (3) he suffered prejudice as a result of counsel's
error, with prejudice measured by whether there is a reasonable probability
the result of the proceeding would have been different.” Commonwealth
v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citing Commonwealth v.
Pierce, 786 A.2d 203, 213 (Pa. 2001)). A PCRA court's credibility findings
are to be accorded great deference, and where supported by the record,
such determinations are binding on a reviewing court. Commonwealth v.
Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998). A PCRA court’s legal conclusions,
however, are reviewed de novo. Commonwealth v. Chmiel, 30 A.3d
1111, 1127 (Pa. 2011).
Appellant’s first assignment of error attacks trial counsel’s purported
failure to investigate Appellant’s stepchildren, T.L. and C.L., as potential
witnesses. As a general proposition, the Sixth Amendment’s guarantee of
effective assistance of counsel requires a lawyer to “undertake reasonable
investigations or make reasonable decisions that render particular
investigations unnecessary.” Commonwealth v. Basemore, 744 A.2d
717, 735 (Pa. 2000) (citing Strickland v. Washington, 466 U.S. 668, 691
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(1984)). The duty to investigate derives from counsel’s function “to make
the adversarial testing process work in the particular case.” Strickland,
supra at 689. This duty encompasses the need to explore avenues of
defense, including possible defense witnesses. “[T]hat testing process
generally will not function properly unless defense counsel has done some
investigation into the prosecution's case and into various defense
strategies[.]” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)
(citation omitted).
With respect to counsel’s failure to present the testimony of T.L. and
C.L., we note the distinction between a claim that counsel neglected to call a
witness and a claim that counsel failed to interview a witness. Obviously,
trial counsel cannot elicit the testimony of a witness unknown to him, nor is
counsel in a position to assess as a matter of trial strategy whether a
particular witness would be helpful if the attorney does not know what the
witness might say. Therefore, it can be unreasonable per se to conduct no
investigation into known witnesses. Commonwealth v. Stewart, 84 A.3d
701, 712 (Pa.Super. 2013) (en banc).
Appellant largely confines his argument to this point; i.e., he maintains
that it was unreasonable per se not to interview or speak to T.L. and C.L.
since these witnesses were mentioned in materials provided during discovery
as being present in the home at the time of these crimes. However, even if
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counsel’s actions were constitutionally unreasonable, the PCRA petitioner
must still establish prejudice.
Appellant's penultimate issue is that trial counsel was ineffective
in failing to interview and present the testimony of four
witnesses. . . . Neglecting to call a witness differs from failing to
investigate a witness in a subtle but important way. The failure
to investigate presents an issue of arguable merit where the
record demonstrates that counsel did not perform an
investigation. It can be unreasonable per se to conduct no
investigation into known witnesses. Importantly, a petitioner
still must demonstrate prejudice. . . .
In this respect, a failure to investigate and interview a witness
claim overlaps with declining to call a witness since the petitioner
must prove: (i) the witness existed; (ii) the witness was
available to testify; (iii) counsel knew of, or should have known
of, the existence of the witness; (iv) the witness was willing to
testify; and (v) the absence of the testimony was so prejudicial
as to have denied the defendant a fair trial.
Commonwealth v. Pander, 100 A.3d 626, 638–39 (Pa.Super. 2014) (en
banc) (quotation marks and citations omitted)
The trial court determined that Appellant failed to establish prejudice
since T.L. and C.L. did not testify at the PCRA hearing. We agree.
Assuming, arguendo, that PCRA counsel ineffectively failed to investigate1
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1
Trial counsel testified that Appellant mentioned T.L. and C.L. as witnesses,
and counsel asked Appellant to provide contact information and/or have the
witnesses contact him. “[D]ifferent light falls upon counsel's performance
depending upon whether he asked and was not told, or he did not ask and
therefore was not told.” Commonwealth v. Basemore, 744 A.2d 717, 735
(Pa. 2000). Since we find that Appellant failed to prove prejudice, we need
not determine whether counsel’s failure to further investigate the named
(Footnote Continued Next Page)
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these witnesses, Appellant has offered no proof whatsoever that he was
prejudiced by these failures, since the witnesses did not testify at the PCRA
hearing. Any notion that Appellant was prejudiced rests on sheer
speculation that the witnesses would have ultimately offered helpful
testimony. Guesswork cannot serve to satisfy Appellant’s burden. The
prejudice inquiry requires an analysis of the testimony that these witnesses
would have offered, not simply proof that counsel ineffectively failed to
interview the witnesses2. See Commonwealth v. Dennis, 950 A.2d 945,
964 (Pa. 2008) (“Appellant failed to carry his burden before the PCRA court.
. . . without [the witnesses'] testimony Appellant cannot demonstrate
prejudice sufficient to establish ineffectiveness of trial counsel.”). Similarly,
Appellant has failed to plead and prove his claim of ineffective assistance by
declining to present the witnesses at the evidentiary hearing. Compare
Commonwealth v. Stewart, supra (affirming grant of new trial where
trial counsel failed to interview alibi witness who testified at the evidentiary
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(Footnote Continued)
witnesses in light of their familial relationship to Appellant was reasonable
under the second Pierce prong.
2
The only discussion of prejudice is Appellant’s argument that “Here, both
[T.L. and C.L.] were present in the home at the time of the alleged incident,
making them eye witnesses. . . . Thus, their testimony would have been
highly relevant, and could have led to a different outcome at trial.”
Appellant’s brief at 13. However, establishing prejudice requires much more
than relevant evidence; it requires a reasonable probability that the result
would have been different.
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hearing). “If a petitioner fails to prove any of [the ineffectiveness] prongs,
his claim fails.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
2013).
We now address Appellant’s second claim, which is that trial counsel
ineffectively failed to present mitigating circumstances to the sentencing
court. Appellant avers that counsel failed to inform the trial court that
Appellant had attempted to commit suicide and that Appellant had been
sexually assaulted in the past. The trial court’s opinion indicates that trial
counsel raised Appellant’s suicide attempt at an earlier juncture in the
proceedings and the court was aware of that fact at sentencing.
Additionally, Appellant admitted that he never told his counsel about the
prior assault. N.T., PCRA Hearing, 5/16/16, at 24. Appellant not only fails
to explain why or how counsel should have independently uncovered this
information, he fails to explain how he was prejudiced by the failure to do
so. Therefore, Appellant is not entitled to a new sentencing hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2017
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