Rosario-Torres v. Lane

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JESUS ROSARIO-TORRES, Civil No. 3:16-cv-1891

Petitioner (Judge Mariani)

V.

SUPERINTENDENT JAY LANE, et al., :

Respondents

MEMORANDUM

Petitioner Jesus Rosario-Torres (“Rosario-Torres’), filed the instant petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction

imposed in the Court of Common Pleas of Pike County, Pennsylvania. (Doc. 1). For the

reasons discussed below, the Court will deny the petition.

I. Factual and Procedural Background

The Superior Court, in considering Rosario-Torres’ appeal from his judgment of

sentence, adopted the following factual and procedural background set forth in the trial

court's opinion:

In May of 2007, [Joseph Atwell] was operating a substantial cocaine

distribution operation out of his home in Forks Township, Northampton

County. Jesus Rosario-Torres and Norman “Carolina” Domenech were two

of his associates who aided in this operation. During the early morning hours

of May 31, 2007, Atwell, Torres and Domenech were at Atwell’s house.

Atwell and Torres told Domenech that the three of them needed to go do a

job. They drove in Atweil’s car to the wooded entrance of the Bear’s Den

Hunting Club in Porter Township, Pike County. Atwell, Torres and Domenech

exited the vehicle and proceeded on foot some distance away from the road.

Atwell and Torres then shot Domenech multiple times and left him at the

scene.

Domenech’s body was subsequently discovered by a group of men visiting

the Bear's Den Hunting Club. The resulting investigation led police to Atwell,

whose home was Domenech’s last known addressj[,] and eventually to

Torres. They were both charged with murder in the first degree [and related

charges].

The Commonwealth filed appropriate notices of its intent to try Torres and

Atwell jointly and its intention to seek the death penalty in both cases. A jury

trial was held over seven days beginning on April 29, 2010. The jury

convicted both defendants of Murder in the First Degree, Conspiracy to

Commit Murder in the First Degree, Kidnapping and Conspiracy to Commit

Kidnapping. [Atwell was also convicted of possessing a firearm without a

license, persons not to possess a firearm and possession of an

instrumentality of crime.]

The penalty phase of the trial occurred over four days. Upon deliberating for

several hours, however, the jury was unable to reach a unanimous decision

and expressed to the trial court that further deliberations would be

unproductive. The trial court determined that the jury was hopelessly

deadlocked and imposed a sentence of life imprisonment on both Torres and

Atwell for the crime of murder in the first degree. On the remaining charges,

Torres received a total aggregate sentence of not less than 30 years nor

more than 60 years [and Atwell received a total aggregate sentence of not

less than 41 years nor more than 104 years. ]

Torres filed a post-sentence motion which the trial court denied. He then filed

a timely notice of appeal on August 12, 2010. [Atwell filed a timely notice of

appeal on July 22, 2010]. Pursuant to Pa.R.A.P. 1925, Torres [and Atwell

each] submitted to the trial court a concise statement of matters complained

of on appeal.

(Doc. 9-27, pp. 2-3, Commonwealth v. Torres, No 2281 EDA 2010 (Pa. Super. Sept. 13,

2011)). On direct appeal to the Pennsylvania Superior Court, Rosario-Torres sought review

of the following issues:

1. Whether the Trial Court erred by denying Petitioner's motion to sever.

2. Whether the Trial Court erred by admitting certain evidence seized

from Defendant Atwell’s residence.

3. Whether the Trial Court erred in its cautionary jury instructions

regarding the evidence seized from Defendant Atwell’s residence.

4. Whether the Trial Court erred in denying Petitioner's motion for a

mistrial.

5. Whether the Trial Court erred in denying Petitioner's Second Omnibus

Motion relating to suppression of certain evidence.

6. Whether the Trial Court erred in granting the Commonwealth's Motion

in Limine to preclude cross-examination of Witness Echevarria

regarding her past drug use.

7. Whether the Trial Court erred in precluding cross-examination of

Witness Echevarria regarding her prior stay in a mental health facility.

8. Whether the Trial Court erred in quashing Petitioner's subpoena to

obtain medical records of Witness Echevarria.

9. Whether the Trial Court erred in denying the Petitioner's Motion for

Transcripts of certain proceedings.

(Doc. 9-25). On September 13, 2011, the Superior Court affirmed Rosario-Torres’ judgment

of sentence. (Doc. 9-27).

Rosario-Torres filed a petition for allowance of appeal to the Pennsylvania

Supreme Court on October 12, 2011. (Doc. 9-28). On February 1, 2012, the Pennsylvania

Supreme Court issued an order denying the petition. (Doc. 9-29). Rosario-Torres did not

file a petition for writ of certiorari to the United States Supreme Court.

Rosario-Torres filed a timely petition pursuant to the Post Conviction Relief Act

("PCRA’), 42 PA. C.S. §§ 9541-9546. (Doc. 9-30). Counsel was appointed for Rosario-

Torres, who subsequently filed a motion to withdraw as counsel. (Doc. 9-31). The PCRA

court granted PCRA counsel’s motion to withdraw, and notified Rosario-Torres of the court’s

intention to dismiss his PCRA petition. (Doc. 9-32). Rosario-Torres then filed an amended

PCRA petition, claiming ineffective assistance of counsel at trial. (Doc. 9-33). Specifically,

Rosario-Torres claimed that trial counsel advised him not to testify, thereby depriving him of

his right to testify and his right to a coherent trial strategy. (/d.). Rosario-Torres further

averred that the trial court erred by failing to colloquy him to determine whether his waiver of

the right to testify was knowing and voluntary. (/d.). On March 25, 2013, a hearing was

held on the amended PCRA petition. (Doc. 9-34). The PCRA court denied the petition and

Rosario-Torres filed a timely appeal to the Pennsylvania Superior Court. (Docs. 9-35, 9-

37). On December 4, 2013, the Superior Court affirmed the PCRA court’s decision. (Doc.

9-38). Rosario-Torres then filed a petition for allowance of appeal to the Pennsylvania

Supreme Court. (Doc. 9-39). The Pennsylvania Supreme Court heard the appeal and

ultimately remanded the case back to the PCRA court with the direction to appoint PCRA

counsel for a limited evidentiary hearing. (Doc. 9-40). The PCRA court appointed counsel

and held an evidentiary hearing on March 3, 2015. (Doc. 9-41). On March 9, 2015,

following the hearing, the PCRA court issued an order denying the amended PCRA petition.

(Doc. 9-42).

Rosario-Torres filed a pro se notice of appeal from the March 9, 2015 order. (Doc.

9-43). Counsel for Rosario-Torres subsequently filed a petition to withdraw as counsel, and

an accompanying Turner/Finley' no-merit brief. (See Doc. 9-45, p. 1). On appeal to the

Pennsylvania Superior Court, Rosario-Torres raised the following issues:

1. Did the PCRA Court abuse its discretion in failing to grant relief on

Petitioner's claim that trial counsel was ineffective for giving

unreasonable advice not to testify on his own behalf where Petitioner

produced evidence that Counsel's advice was based on a hunch that

the Commonwealth had not produced enough evidence to sustain a

guilty verdict?

2. Was PCRA Counsel ineffective for failing to present the testimony of

Petitioner's daughter at the evidentiary hearing where her testimony

would have contradicted trial counsel’s statements about the advice he

gave Petitioner and his statement that Petitioner admitted guilt to him?

(Doc. 9-43). On May 4, 2016, the Superior Court granted counsel's petition to withdraw and

affirmed the PCRA court’s opinion. (Doc. 9-45; Commonwealth v. Torres, 2016 WL

2352826 (Pa. Super. May 4, 2016)).

Rosario-Torres then filed the instant petition for federal habeas relief.

ll. Issues Presented in the Federal Habeas Petition

Rosario-Torres sets forth the following ten grounds for relief in the federal habeas

' Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley,

379 Pa. Super. 390, 550 A.2d 213 (1988) (en banc).

petition:

1. Whether the trial court erred in denying the Defendant’s written and

oral motions to sever his case from that of his co-defendant Joseph

Atwell, thus denying the Defendant due process and his right to a fair

trial.

2. Whether the trial court erred in admitting into evidence certain items

seized at Defendant Atwell’s property that bore no connection to

Defendant Torres, including various guns not alleged to have been

used in the commission of the crimes charged, various types and

quantities of drugs, a white supremacist manual, and various items

alleged to be related to the drug trade including baggies and owe lists,

thus denying the Defendant due process and his right to a fair trial.

3. Whether the trial court erred in its cautionary instructions to the jury

related to the items referenced in Question #2 as such instructions

were insufficient to cure the prejudice caused by the introduction of

said items, thus denying the Defendant due process and his right to a

fair trial.

4, Whether the trial court erred in denying the Defendant’s motion for a

mistrial following the introduction into evidence and vivid display to the

jury of various guns, drugs and other items seized at Defendant

Atwell’s house thus denying the Defendant due process and his right

to a fair trial.

5. Whether the trial court erred in denying the Defendant's second

(further amended) omnibus motion to suppress statements and

evidence specifically related to a cell phone and picture obtained

therefrom, which were illegally obtained from the Hispanic,

. non-English speaking Defendant, where the Defendant signed a

Waiver of Rights and Consent to Search Form printed in English and a

non-certified translator was used.

6. The trial court erred in granting the Commonwealth's Motion in Limine

to preclude cross-examination or use of extrinsic evidence of past drug

use from the Commonwealth’s key witness, Magaly Echevarria, where

evidence of prolonged drug use was directly related to the witness's

ability to recall events about which she was testifying and in [sic]

precluded the Defendant from presenting expert testimony related to

the effect of past drug use on one’s ability to testify and recall events

in violation of the confrontation clause of the Pennsylvania and United

States Constitutions.

7. Whether the trial court erred in precluding the Defendant from cross-

examining the Commonwealth's key witness regarding her recent

hospitalization in a mental health facility where the Defendant had

information that the witness had lied under oath and stated that she

was hospitalized for asthma in violation of the confrontation clause and

the compulsory process clause of the Pennsylvania and United States

Constitutions.

8. Whether the trial court erred by quashing a subpoena to obtain Magaly

Echevarria’s mental health records and by denying the defense

request for a mental health evaluation to be conducted on Echevarria.

9. Whether the trial court erred in denying the Defendant’s motion for

transcripts of arguments held with regard to certain issues on appeal,

where the legal arguments were held on the record, and the Defendant

preserved certain issues for appeal during these arguments.

10. trial counsel ineffective for offering unreasonable advice not to

testify and in doing so, interfering with the Defendant's right to testify

on his own behalf?

(Doc. 1, pp. 3, 8-27).

lll. Standard of Review

The statutory authority of federal courts to issue habeas corpus relief for persons in

State custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA’). A habeas corpus petition pursuant to §

2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his

confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439

(1973). “[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct.

475, 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based

“on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.

A. — Exhaustion

Habeas corpus relief cannot be granted unless all available state remedies have

been exhausted, or there is an absence of available state corrective process, or

circumstances exist that render such process ineffective to protect the rights of the

applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on

principles of comity in order to ensure that state courts have the initial opportunity to review

federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178,

192 (3d Cir. 2000).

A state prisoner exhausts state remedies by giving the “state courts one full

opportunity to resolve any constitutional issues by invoking one complete round of the

State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845,

119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).? Respect for the state court system requires that the

petitioner demonstrate that the claims in question have been “fairly presented to the state

courts.” Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989).

To “fairly present” a claim, a petitioner must present its “factual and legal substance to the

state courts in a manner that puts them on notice that a federal claim is being asserted.”

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d

187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner

presents the same factual and legal basis for the claim to the state courts). While the

petitioner need not cite “book and verse’ of the federal Constitution, Picard v. Connor, 404

U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), he must “give the State ‘the opportunity

to pass upon and correct’ alleged violations of its prisoners’ federal rights” before presenting

those claims here, Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865

(1995) (quoting Picard, 404 U.S. at 275, 92 S.Ct. 509).

B. Merits Standard

Once a court has determined that the exhaustion requirement is met and, therefore,

that review on the merits of the issues presented in a habeas petition is warranted, the

In Pennsylvania, pursuant to Order 218 of the Pennsylvania Supreme Court, review of criminal

convictions and post-conviction relief matters from the Pennsylvania Supreme Court is discretionary and

“unavailable” for purposes of exhausting state court remedies under § 2254. Lambert v. Blackwell, 387

F.3d 210, 233 (3d Cir. 2004). Thus, to exhaust state remedies, a Pennsylvania prisoner need appeal only

to the Pennsylvania Superior Court.

scope of that review is set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides, in

pertinent part, that an application for a writ of habeas corpus premised on a claim previously

adjudicated on the merits in state court shall not be granted unless:

(1) [the decision] was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States; or

(2) [the decision] was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law “it is not

sufficient for the petitioner to show merely that his interpretation of Supreme Court

precedent is more plausible than the state court’s; rather, the petitioner must demonstrate

that Supreme Court precedent requires the contrary outcome.” Matteo v. Superintendent,

171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court

decision to be an unreasonable application of federal law if the decision, “evaluated

objectively and on the merits, resulted in an outcome that cannot reasonably be justified

under existing Supreme Court precedent.” /d.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a

state court's findings of fact are correct. A petitioner may only rebut this presumption with

clear and convincing evidence of the state court’s error. Miller-El v. Cockrell, 537 U.S. 322,

341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual

issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual

10

decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir.

2005). This presumption of correctness applies to both explicit and implicit findings of fact.

Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner

“must clear a high hurdle before a federal court will set aside any of the state court’s factual

findings.” Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).

Like the “unreasonable application” prong of paragraph (1), a factual determination

should be adjudged “unreasonable” under paragraph (2) only if the court finds that a rational

jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C.

§ 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v.

Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316

(1979). “This provision essentially requires the district court to step into the shoes of an

appellate tribunal, examining the record below to ascertain whether sufficient evidence

existed to support the findings of fact material to the conviction.” Breighner v. Chesney, 301

F. Supp. 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)*). Mere

disagreement with an inferential leap or credibility judgment of the state court is insufficient

to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams v. Taylor, 529 U.S. 362,

408-09 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding

> “If the applicant challenges the sufficiency of the evidence adduced in such State court

proceeding to support the State court's determination of a factual issue made therein, the applicant, if able,

shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to

support such determination.” 28 U.S.C. § 2254(f).

11

lacks evidentiary support in the state court record or is plainly controverted by evidence

therein should the federal habeas court overturn a state court’s factual determination.

Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.

IV. Discussion

A. Ground One

In his first ground for relief, Rosario-Torres asserts that the trial court erred in failing

to sever his trial from that of his co-defendant, Joseph Atwell. (Doc. 1, pp. 3, 8). Rosario-

Torres alleges that there was certain evidence that was admitted at trial, that he contends

would not have been admissible if he was tried alone. (/d.). This evidence included

firearms, drugs, drug paraphernalia, and a white supremacist manual, all of which was

discovered in Defendant Atwell’s residence. (/d.). Defendant Atwell was charged with

crimes relating to the possession of these items, but Rosario-Torres was not. (/d.).

“There is a preference in the federal system for joint trials of defendants who are

indicted together” because joint trials “promote efficiency and ‘serve the interest of justice by

avoiding the scandal and inequity of inconsistent verdicts.” Zafiro v. United States, 506

U.S. 534, 537 (1993). “Joint trials conserve state funds, diminish inconvenience to

witnesses and public authorities, and avoid delays in bringing those accused of crime to

trial.” United States v. Lane, 474 U.S. 438, 448 (1986).

“Improper joinder does not, in itself, violate the Constitution. Rather, misjoinder

12

would rise to the level of a constitutional violation only if it results in prejudice so great as to

deny a defendant his Fifth Amendment right to a fair trial.” Lane, 474 U.S. at 446 n. 8.

Typically, a trial court should grant a severance only if there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence. Zafiro, 506 U.S. at 539. The potential

for such a risk may arise when co-defendants assert “mutually antagonistic” defenses.

United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir. 1996) (citing Zafiro, 506 U.S. at 538).

Significantly, mutually antagonistic defenses are not prejudicial per se, so as to require

severance. Zafiro, 506 U.S. at 538.

In considering the issue that “both Atwell and Torres claim the trial court erred in

failing to grant motions to sever their trials,” the Pennsylvania Superior Court set forth the

following standards:

“Joinder and severance of separate indictments for trial is a discretionary

function of the trial court; consequently, the trial court's decision is subject to

review for abuse of that discretion.” Commonwealth v. Brookins, 10 A.3d

1251, 1255 (Pa. Super. 2010) (citations omitted). An abuse of discretion

consists not merely of errors in judgment by the trial court, but instead

contemplates action unsupported by the evidence, at odds with governing

law, or arising from improper motives personal to the judge. /d. The critical

consideration is whether the appellant suffered prejudice as a result of the

trial court's decision. /d. It is the appellant's burden to establish the

existence of such prejudice. Id.

Courts should grant separate trials of co-defendants only where the defenses

13

of each are antagonistic to the point where such individual differences are

irreconcilable and a joint trial would result in prejudice. [Commonwealth v.

Rainey, 928 A.2d 215,] 232 [(Pa. 2007).]

(Doc. 9-27, pp. 3-5).

This standard is indistinguishable from the Supreme Court requirement that a

defendant demonstrate a serious risk that a joint trial would result in prejudice. It also

considers that the potential for such a risk arises when co-defendants assert “mutually

antagonistic’ defenses. See Zafiro, 506 U.S. at 538; Rainey, 928 A.2d at 232. It is clear

that the law relied on by the state court is in accord with governing United States Supreme

Court precedent.

In concluding that Rosario-Torres’ claims were meritless, and that he failed to

establish prejudice such that severance was warranted, the Superior Court stated as

follows:

[Torres] argues severance was appropriate because “certain evidence was

presented during the trial that related to... . Atwell, but that would have been

inadmissible in the trial of . . . Torres if tried alone.” Brief of Appellant Torres,

at 17. Specifically, Torres cites drugs, drug paraphernalia, guns and a white

supremacist/ anarchist manual, all of which were seized from Atwell’s home.

Torres claims this evidence caused a level of prejudice that no instruction

could cure.” /d. at 18. Finally, Torres argues the trial court’s refusal to sever

caused him additional prejudice because he and Atwell were alleged to have

had “varying degrees of culpability.” /d. at 22. Torres’ claims have no merit.

We begin by noting that, although Atwell may have been the “leader” of the

drug ring and Torres his “employee,” the crimes with which the

Commonwealth charged Torres were identical to those lodged against Atwell

(first degree murder, kidnapping and conspiracy). Thus, the level of

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culpability alleged by the Commonwealth was exactly the same with regard to

both defendants. We fail to discern, and Torres does not explain, the basis

for his claim that he and Atwell were accused of “varying degrees of

culpability.” Id. As such, this argument garners Torres no relief.

Torres next claims he was prejudiced because evidence was presented at

trial which would have been inadmissible had he been tried alone. This claim

is meritless for several reasons. First, the mere fact that evidence may be

admitted at trial against one co-defendant which would not be admissible

against another co-defendant does not establish undue prejudice against the

latter. “In fact, it is common in joint trials that evidence is admissible against

one co-defendant but inadmissible against another.” Commonwealth v.

McCrae, 832 A.2d 1026 (Pa. 2003) (citation and quotations omitted).

Second, Torres has not demonstrated that the evidence in question was, in

fact, inadmissible against him. “[T]he question of admissibility depends to a

large extent upon the purpose for which the evidence was proffered, as well

as a balance of probative value and prejudicial effect.” Commonwealth v.

DeJesus, 880 A.2d 608, 615 (Pa. 2005). Here, the gun evidence was

admissible to demonstrate that Torres, who was shown to have had access to

Atwell's residence, also had access to the types of firearms used to shoot the

victim. See id. (“If evidence of possession of, or access to, a weapon other

than the murder weapon were proffered for some other relevant purpose, no

hard and fast rule could require its exclusion.”). Similarly, the drug evidence

was admissible against Torres to establish his relationship with Atwell, as well

as their motive to commit the killing. Commonwealth v. Malloy, 856 A.2d 767,

775-76 (Pa. 2004) (evidence of drug activity of appellant, and that of co-

defendants, admissible to demonstrate motive).

(Doc. 9-27, pp. 10-12).

A state court decision is an unreasonable application of Supreme Court precedent if

the court “correctly identifies the governing legal rule but applies it unreasonably to the

facts” of the case. Penry v. Johnson, 532 U.S. 782, 792 (2001). It is clear that the state

court reasonably applied the Supreme Court precedent in that it correctly identified the

15

governing legal rules and reasonably applied them to the facts of the case.

To the extent that Rosario-Torres raises a general due process claim based upon

the denial of his motion for a severance, this claim is not meritorious. To prevail on a due

process claim, Rosario-Torres must prove that he was deprived of “fundamental elements

of fairness in [his] criminal trial.”. Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir. 2014)

(quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992)). Rosario-Torres “must tread a steep

hill.” Id. “The Supreme Court has ‘defined the category of infractions that violate

‘fundamental fairness’ very narrowly, based on the recognition that, beyond the specific

guarantees enumerated in the Bill of Rights, the Due Process Clause has limited

operation.” /d. (quoting Medina v. California, 505 U.S. 437, 443 (1992)). “In order to satisfy

due process, [Rosario-Torres’] trial must have been fair, it need not have been perfect.” /d.

(citing United States v. Hasting, 461 U.S. 499, 508 (1983)). Upon review of the trial record

and the decisions of the state courts, it is clear that Rosario-Torres was not denied due

process when the trial court denied his motion for severance. The record clearly indicates

that the trial judge had ample discretion as to whether to sever Rosario-Torres’ trial from

that of his co-defendant, and that the court correctly applied state law and rules of evidence

in determining that Rosario-Torres was not prejudiced by the trial court’s failure to grant

separate trials. Rosario-Torres is not entitled to relief on ground one.

16

B. Ground Two

In ground two, Rosario-Torres alleges that the trial court erred in admitting items

seized at Atwell’s residence, namely firearms, a gun case, drugs, drug paraphernalia, and

the white supremacist manual, and the testimony and other evidence related to those items.

(Doc. 1, pp. 3, 10). On direct appeal, Rosario-Torres challenged the admission of these

items on state evidentiary law. (Doc. 9-25, pp. 30-37). However, in his direct appeal brief,

Rosario-Torres makes a sweeping reference to the violation of his right to due process.

(Doc. 9-25, pp. 34, 36, 37). Out of an abundance of caution, the Court will consider the

merits of this claim.

Generally, the admissibility of evidence is a question of state law which is not

cognizable under habeas review. See Keller v. Larkins, 251 F.3d 408, 416 n.2 (3d Cir.

2001) (“A federal habeas court . . . cannot decide whether the evidence in question was

properly allowed under the state law of evidence.”). “[T]he Due Process Clause does not

permit the federal courts to engage in a finely-tuned review of the wisdom of state

evidentiary rules.” Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (citing Spencer v.

Texas, 385 U.S. 554, 564 (1967)). The state courts are entitled to deference in their

determinations regarding evidence and procedure. See Crane v. Kentucky, 476 U.S. 683,

690 (1986). Because habeas relief does not provide an avenue for relief based on alleged

errors of state law, a habeas claim based on a state law evidentiary issue may only be

17

raised where the petitioner can show that the admission of the evidence in question denied

him due process by depriving him of the “fundamental elements of fairness in [his] criminal

trial.” Glenn, 743 F.3d at 407 (quoting Riggins, 504 U.S. at 149).

In reviewing the appropriateness of the admissibility of the evidence, the state courts

cited to the Pennsylvania Rules of Evidence and applicable state court law. (Doc. 9-24, pp.

7-12; Doc. 9-27, pp. 11-12). The trial court found that all evidence had the permissible and

probative effect of linking Rosario-Torres to the murder of Domenech. (Doc. 9-24, pp. 7-

12).

The trial court found that the admission of the drugs and drug paraphernalia found at

Atwell’s house was relevant to show motive for the murder, and that Pennsylvania courts

have repeatedly held that evidence demonstrating a defendant was involved in drug

trafficking is admissible to show motive for murder. (Doc. 9-24, pp. 7-10). Specifically, the

drug evidence established that Rosario-Torres and Domenech both sold drugs for Atwell,

that Atwell was angry with Domenech for multiple reasons and, because of this anger,

Atwell had a motive to conspire with Rosario-Torres to kill Domenech. (/d. at p. 9). The trial

court thus found that Rosario-Torres’ position within Atwell’s drug organization was

essential to understanding his motive for committing the murder. (/d.). And, the drugs were

essential to understanding how these three individuals were connected to each other. (/d.).

The trial court ultimately concluded that the drug evidence was admissible under PA. R.E.

18

404 (b)(2), and that the probative value of such evidence outweighed its potential for

prejudice. (/d. at p. 10).

The trial court next found that the firearms and related evidence was relevant and

had sufficient probative value. (Doc. 9-24, pp. 10-12). This evidence included Atwell’s

meticulous care for his guns and owning a specific case for each firearm, two gun cases

with missing guns, the active concealment of a pistol after Domenech’s murder, the

absence of another pistol which correlates to the murder weapon, and evidence that the

bullets found in the gun cases were connected to the bullets at the crime scene. (/d.). The

trial court found that the evidence of the firearms and gun cases demonstrated that Rosario-

Torres had access to weapons, including one that was the size, shape, and caliber of the

murder weapon. (/d. at p. 11). And, evidence of the missing gun indicated circumstantial

evidence of Rosario-Torres’ acknowledgment of the crime and the need to conceal

evidence of the crime. (/d.). The trial court ultimately concluded that the firearms evidence

had sufficient probative value and was admissible. (/d. at p. 12).

With respect to the white supremacist manual, the record reflects that the trial court

was never asked to rule on the admissibility of the manual. (See Doc. 9-24, p. 15). At trial,

the Commonwealth moved for its admission and counsel for both defendants expressly

stated that they had no objection. (See id.) (citing N.T. 5/7/10, pp. 6-9). Because defense

counsel did not object, the trial court allowed the manual’s admission into evidence. (/d.;

19

see also Doc. 9-14, N.T. Trial 5/7/10, pp. 6-9). The trial court subsequently granted

Rosario-Torres’ request for a cautionary instruction to the jury with respect to the manual.

(Doc. 9-24, pp. 15-16; Doc. 9-14, N.T. Trial 5/7/10, pp. 62-63, 98-99). The trial court

provided instructions in an attempt to minimize any potential prejudice, and counsel for

Rosario-Torres never objected to the instructions. (/d.).

Rosario-Torres argues that the admission of the above-referenced evidence was

improper and prejudicial, with minimal probative value. (Doc. 1, p. 10). However, Rosario-

Torres fails to demonstrate that the state court’s reasoned analysis of the decision to allow

these items into evidence resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented. The Court finds no clear error

by the state court in applying state evidentiary rules, and finds that Rosario-Torres has

failed to show that the state court’s evidentiary rulings deprived him of “fundamental

elements of fairness in [his] criminal trial.” Glenn, 743 F.3d at 407. Therefore, no relief is

warranted on this claim.

C. Ground Three

In ground three, Rosario-Torres asserts that the trial court erred in its cautionary

instructions to the jury related to the gun, controlled substances, white supremacist manual,

and related evidence, as such instructions were insufficient to cure the prejudice caused by

the introduction of these items. (Doc. 1, pp. 3, 13). On direct appeal, Rosario-Torres

20

challenged the propriety of the jury instruction on state evidentiary law. (Doc. 9-25, pp. 38-

41). Rosario-Torres did make a passing reference to denial of due process and deprivation

of a fair trial in his direct appeal brief. (Doc. 9-25, p. 41). Therefore, the Court will turn to

the merits of this claim.

Where a federal habeas petitioner challenges jury instructions given in a state

criminal proceeding, the only question for the court to consider is “whether the ailing

instruction by itself so infected the entire trial that the resulting conviction violates due

process.” Estelle, 502 U.S. at 71-72 (quoting Cupp v. Naughton, 414 U.S. 141, 147 (1973)).

“It is well established that the instruction ‘may not be judged in artificial isolation,’ but must

be viewed in the context of the instructions as a whole and the trial record.” /d. A trial judge

is given much discretion in determining the language of the jury charge. See United States

v. Flores, 454 F.3d 149, 161 (3d Cir. 2006) (citing United States v. Goldblatt, 813 F.2d 619,

623 (3d Cir. 1987)). Further, the Third Circuit Court of Appeals has observed that a habeas

petitioner who challenges state jury instructions must “point to a federal requirement that

jury instructions . . . must include particular provisions,” or demonstrate that the jury

“instructions deprived him of a defense which federal law provided to him.” Johnson v.

Rosemeyer, 117 F.3d 104, 111 (3d Cir. 1997). This is because district courts do not “sit as

super state supreme courts for the purpose of determining whether jury instructions were

correct under state law with respect to the elements of an offense and defenses to it.” /d. at

21

110.

In affirming the judgment of sentence, the Pennsylvania Superior Court addressed

this issue as follows:

... the trial court properly instructed the jury regarding the limited purposes

for which it was to consider the drug and gun evidence. See N.T. Trial,

5/6/10, at 121-22; N.T. Trial 5/12/10, at 223-25 (trial court’s instructions to jury

regarding consideration of gun and drug evidence). As the jury is presumed

to have followed the trial court’s instructions in this regard, see

[Commonwealth v.] Smith, [995 A.2d1143, 1163 (Pa. 2010)], supra, the

instructions were sufficient to cure any undue prejudice which may have

resulted from the introduction of the gun and drug evidence. As such, and in

light of the record as a whole, the trial court's refusal to sever Torres’ trial

from that of Atwell was a proper exercise of the court's discretion.

(Doc. 9-27, p. 12).

Rosario-Torres has not demonstrated that the jury misapplied the trial court's

instructions in a way that violates the Constitution. The trial court gave extensive

instructions to the jury regarding the drug, gun, and related evidence. (See Doc. 9-14, N.T.

Trial 5/7/10, pp. 62-63, 98-99; Doc. 9-17, N.T. Trial 5/12/10, pp. 223-25). The trial court

clearly delineated the limited purposes for which the jury could consider the drug, gun, and

related evidence, and specifically directed the panel not to use the evidence as proof of

either defendant's guilt on the underlying charges. These instructions, which the jury is

presumed to have followed, see Commonwealth v. Smith, 995 A.2d1143, 1163 (Pa. 2010),

were sufficient to cure any potential undue prejudice which may have resulted from the

introduction of such evidence. (Doc. 9-27, p. 12). The state courts’ decisions are not

22

contrary to, or an unreasonable application of, constitutional law, nor are they an

unreasonable determination of the facts in light of the evidence presented. Rosario-Torres

has failed to show that he was deprived of “fundamental elements of fairness in [his]

criminal trial” based on this claimed error. Glenn, 743 F.3d at 407. Thus, he is not entitled

to relief on this claim.

D. Ground Four

In ground four, Rosario-Torres argues that the trial court erred in denying his request

for a mistrial. (Doc. 1, pp. 3, 16). After the evidence of the firearms, drugs, and related

items were presented to the jury, the trial court gave a limiting instruction regarding the

evidence, and denied defense counsel's oral request for a mistrial. On direct appeal,

Rosario-Torres challenged the trial court's decision on state law grounds, with a passing

reference to denial of due process and deprivation of a fair trial. (Doc. 9-25, pp. 42-43).

Assuming that Rosario-Torres’ use of the terms “due process” and “fair trial” implicate the

federal Constitution, the Court will turn to the merits of this claim.

The trial court, in its Rule 1925(a) opinion on direct appeal, explained that the drug

and gun evidence were admissible, had sufficient probative value, denied Rosario-Torres’

motion to prohibit their admission, and denied his request for a mistrial. (Doc. 9-24, pp. 10-

15). The trial court found as follows:

Despite its admissibility, the drug and gun evidence certainly had potential to

cause undue prejudice if the jury considered it in making general conclusions

23

about Torres’ character and his propensity to commit the charged offenses.

Such consideration would clearly exceed the limited purposes for which the

evidence was admitted. In light of the limiting instruction given to the jury,

however, the trial court concluded that the potential for such prejudice did not

warrant granting Torres’ motion for a mistrial.

‘A trial court may grant a mistrial only ‘where the incident upon which the

motion is based is of such a nature that its unavoidable effect is to deprive the

defendant of a fair trial by preventing the jury from weighing and rendering a

true verdict.” Commonwealth v. Wright, 599 Pa. 270, 309, 961 A.2d 119,

142 (2008) quoting Commonwealth v. Simpson, 562 Pa. 255, 754 A.2d 1264,

1272 (2000). In this instance, the trial court gave a cautionary instruction to

the jury limiting their consideration of the drug and gun evidence. “The jury is

assumed to have followed the cautionary instruction given.” Commonwealth

v. Watkins, 577 Pa. 194, 216, 843 A.2d 1203, 1216 (2003). Such instruction,

moreover, is presumed to be sufficient to cure any prejudice.” /d[.]; see also

PA. R.E. 105. Accordingly, the drug and gun evidence did not have the

unavoidable effect of depriving the defendant of a fair trial and the trial court

therefore denied his motion for a mistrial.

_ (Doc. 9-24, pp. 14-15) (footnote omitted). On appeal, the Pennsylvania Superior Court

affirmed the trial court's decision and adopted the reasoning of the trial court judge. (Doc.

9-27, pp. 12-13). The trial court determined that the evidence in question was actually

admissible, and provided curative instructions with respect to the evidence. For the reasons

stated above, the jury is presumed to have followed the instructions, and the circumstances

do not suggest that the jury would have had particular difficulty in following them. The trial

court ultimately found that Rosario-Torres failed to establish any undue prejudice and

denied his request for a mistrial. It is clear that the state court correctly identified the

applicable state law and state evidentiary rules and reasonably applied them to the facts of

24

the case. Rosario-Torres has not established that the evidence was so inflammatory as to

prevent a fair trial. Thus, Rosario-Torres is not entitled to relief on this ground.

E. Ground Five

In ground five, Rosario-Torres asserts that the trial court erred in denying his second

amended omnibus motion to suppress statements and evidence related to a cell phone and

picture on the cell phone, which he claims were illegally obtained from him because he

signed a Waiver of Rights and Consent to Search Form printed in English, he only speaks

Spanish, and a non-certified translator was used during the interview. (Doc. 1, pp. 3, 18).

1. Waiver of Miranda

The Fifth Amendment of the United States Constitution protects an individual from

self-incrimination. U.S. CONST. amend. V. The Fourteenth Amendment incorporates the

Fifth Amendment privilege against self-incrimination to the states. See Malloy v. Hogan,

378 U.S. 1, 8 (1964). The prosecution may not use any statements stemming from a

custodial interrogation unless the individual is first informed of his right to remain silent, that

any statement made may be used as evidence against him, and that he has a right to an

attorney. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966). An individual may waive these, provided the waiver is made voluntarily, knowingly,

and intelligently. /¢. Absent a voluntary waiver of these rights, a confession taken during a

custodial interrogation violates the privilege against self-incrimination. See Thompson v.

25

Keohane, 516 U.S. 99 (1995).

Rosario-Torres alleges that because he is Spanish-speaking and does not

understand the English language, the State Police officers should have provided a certified

translator when they spoke to him. He essentially argues that this amounted to a violation

of Miranda and a violation of search and seizure. When evaluating whether the waiver of

Miranda's protections was voluntary, the Court must consider two elements. First, a

suspect's waiver must be voluntary in the sense that it is the “product of an essentially free

and unconstrained choice by its maker.” United States v. Swint, 15 F.3d 286, 289 (3d Cir.

1994). Second, the waiver must be “made with a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.” Berghuis v.

Thompkins, 560 U.S. 370, 371 (2010) (quoting Moran v. Burbine, 475 U.S. 412, 421

(1986)). To determine if a confession was voluntary and whether a party knowingly waived

his rights, the Supreme Court requires consideration of “the totality of all the surrounding

circumstances-both the characteristics of the accused and the details of the interrogation.”

Dickerson v. United States, 530 U.S. 428, 434 (2000) (citations omitted).

The Supreme Court has held that a statement or confession is involuntary when the

suspect's “will was overborne in such a way as to render his confession the product of

coercion.” Arizona v. Fulminante, 499 U.S. 279, 288 (1991). However, a lack of evidence

regarding an officer's use of coercive tactics similarly impacts a voluntariness analysis. See

26

United States v. Jacobs, 431 F.3d 99, 108 (3d Cir. 2005) (“A necessary predicate to a

finding of involuntariness is coercive police activity.”).

‘The ultimate issue of voluntariness is a legal question requiring an independent

federal determination.” Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002) (“[U]nder the

AEDPA habeas standard, we are required to determine whether the state court’s legal

determination of voluntariness was contrary to or an unreasonable application of Supreme

Court precedent.”) (citing Miller v. Fenton, 474 U.S. 104, 110 (1985)). Determinations of

factual issues by state courts, such as whether police used intimidation tactics, are given a

presumption of correctness, which may be rebutted by clear and convincing evidence to the

contrary. See Miller, 474 U.S. at 112 (a state court's findings on subsidiary questions in

determining voluntariness of a confession are conclusive on habeas review absent clear

and convincing evidence to the contrary); see also Sweet v. Tennis, 386 F. App’x 342, 345

(3d Cir. 2010). Thus, the Court must examine the facts surrounding Rosario-Torres’ police

interview in order to determine if the state court's holding was contrary to, or an

unreasonable application of, clearly established federal law.

Rosario-Torres raised this issue during pretrial proceedings and, following a hearing,

the trial court denied the suppression motion, citing federal case law. On appeal, the

Pennsylvania Superior Court adopted the reasoning of the trial court. In addressing this

claim, the trial court found as follows:

27

During trial, the Commonwealth presented the testimony of Pennsylvania

State Police Trooper Paul Cavallero. Trooper Cavallero testified that, on

June 10, 2007, he conducted an interview with Torres at the State Police

barracks in Harrisburg. See N.T. 5/4/10 at 205. That interview was

conducted with Corporal Daniel Gonzalez acting as a Spanish interpreter

between Torres, who speaks only Spanish, and Trooper Cavallero. After

executing a written waiver of his Miranda rights, Torres indicated that he was

at the Atwell residence in Northampton County the day after he and

Domenech were at the Atwell residence on May 29, 2007, after he and

Domenech were subjected to a traffic stop on that date. Torres further

indicated that he left the Atwell residence for Harrisburg on May 30, 2007,

prior to when the murder occurred. See N.T. 5/4/10, at 212-214. During the

interview, however, Torres consented to a search of his cell phone, which

revealed a photograph placing him in Northampton County after May 30,

2007. See N.T. 5/4/10, at 212-214.

Prior to trial, Torres filed an omnibus motion seeking to suppress both his

statements during the June 10, 2007 interview with Trooper Cavallero and the

photograph recovered from his cell phone. See Second Further Amended

Omnibus Pretrial Motion (March 15, 2010). He argued that he did not

understand the Miranda warnings read to him during the interview because

Corporal Gonzalez was not a competent translator. Similarly, he argued that

his consent to search his cell phone was invalid because Corporal Gonzalez

was not a competent translator. Following a hearing, the trial court denied

Torres’ motion. See Trial Court Order, 5/4/10. Torres now argues on appeal

that this was an error on the part of the trial court.

With respect to Torres’ Miranda waiver, the trial court notes the

well-established principles established by the United States Supreme Court:

Echoing the standard first articulated in Johnson v. Zerbst, 304

U.S. 458, 464 (1938), Miranda holds that the defendant may

waive effectuation of the rights conveyed in the warnings

provided the waiver is made voluntarily, knowingly and

intelligently. The inquiry has two distinct dimensions. First, the

relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice

rather than intimidation, coercion, or deception. Second, the

28

waiver must have been made with a full awareness of both the

nature of the right being abandoned and the consequences of

the decision to abandon it. Only if the totality of the

circumstances surrounding the interrogation reveals both an

uncoerced choice and the requisite level of comprehension

may a court properly conclude that the Miranda rights have

been waived.

Moran v. Burbine, 475 U.S. 412, 421 (U.S. 1986) (internal citations omitted).

Furthermore, it is the Commonwealth's burden to prove by a preponderance

of the evidence that a Miranda waiver was valid.

At the hearing held on Torres’ motion, the Commonwealth presented the

testimony of both Trooper Cavallero and Corporal Gonzalez. They testified

that Torres was provided Miranda warnings in Spanish in both oral and

written form. Torres said he understood those warnings and ultimately signed

a written waiver of his rights. See Commonwealth Exhibit 1 (3/29/10). Based

on their testimony, the trial court concluded that the Commonwealth

sufficiently proved that Torres|] voluntarily, knowingly, and intelligently waived

his Miranda rights.

To the extent Torres claimed his waiver was ineffective because Corporal

Gonzalez was not a competent interpreter, the trial court found this argument

lacked merit. The Tenth Circuit Court of Appeals has previously addressed

this issue and provided the following analysis:

Although language barriers may inhibit a suspect's ability to

knowingly and intelligently waive his Miranda rights, when a

defendant is advised of his rights in his native tongue and

claims to understand such rights, a valid waiver may be

effectuated. The translation of a suspect's Miranda rights need

not be a perfect one, so long as the defendant understands that

he does not need to speak to police and that any statement he

makes may be used against him.

United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990); see also

United States v. Boon San Chong, 829 F.2d 1572 (9th Cir. 1987); United

States v. Martinez, 588 F.2d 1227 (9th Cir. 1978). This is consistent with the

29

United States Supreme Court's holdings that “the rigidity of Miranda does not

extend to the precise formulation of the warnings given a criminal defendant,

and no talismanic incantation is required to satisfy its strictures.” Duckworth

v. Eagan, 492 U.S. 195, 202, 109 S.Ct. 2875, 2880 (1989) (internal citations

omitted). “The inquiry is simply whether the warnings reasonably convey to a

suspect his rights as required by Miranda.” /d. at 203.

In this instance, Corporal Gonzalez testified at the omnibus hearing that he

was raised in a Spanish speaking family, that he speaks fluent Spanish, and

that he understands some written Spanish. In addition, he testified that he

was able to understand Torres during the interview and that Torres did not

appear to have any problem understanding and responding to him

appropriately. Based on this testimony, the trial court concluded that Corporal

Gonzalez was a competent interpreter and sufficiently informed Torres of his

rights prior to executing the waiver.

Likewise, with respect to the search of Torres’ phone, the trial court

concluded that Trooper CavalflJer[Jo obtained Torres[’] valid consent.

It is the Commonwealth's burden to prove that a defendant

consented to a warrantless search. To establish a voluntary

consensual search, the Commonwealth must prove that a

consent is the product of an essentially free and unconstrained

choice -- not the result of duress or coercion, express or

implied, or a will overborne -- under the totality of the

circumstances.

Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003).

Here, Corporal Gonzalez testified that Torres signed a written consent form

prior to his phone being searched by police. See Commonwealth Exhibit 2

(March 29, 2010). While that consent form was written in English, Corporal

Gonzalez testified that he verbally translated the form for Torres, and that

Torres appeared to understand this explanation. In addition, Trooper

Caval[llero testified that no threats were made to get Torres to sign the

written consent. Accordingly, based on the totality of the circumstances, the

trial court concluded that Torres[’] consent was the product of an essentially

free and unconstrained choice.

30

For the above stated reasons the trial court denied Torres’ motion to

suppress the statements and photographs obtained during the June 10, 2007

interview. For identical reasons, his arguments on appeal lack merit.

(Doc. 9-24, pp. 16-20).

The Court has considered the facts in support of Rosario-Torres’ claim that his

confession was invalid, and finds that he has not established that the state court conclusion

resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law. Nor has he established that the proceedings resulted in a

decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. The facts show that Rosario-Torres’

treatment during the interrogation was reasonable, did not present an intimidating or

coercive environment, and was not unduly lengthy. See Jacobs, 431 F.3d at 108. Nothing

in the record suggests that Rosario-Torres’ statements were not voluntary. Rosario-Torres

entered the Pennsylvania State Police Barracks on his own. (Doc. 9-6, N.T. Suppression

Hearing 3/29/2010, pp. 54-56). The State Police officers did not pick him up and did not

transport him to the barracks. (/d.). Sergeant Cavallaro questioned Rosario-Torres in an

interview room. (Id. at pp. 58-59). Corporal Gonzalez aided in the questioning by

translating to Spanish. (/d.). Rosario-Torres was never handcuffed and never told that he

could not leave. (/d.). He was read his Miranda rights and warnings in Spanish, and the

Rights and Warnings Waiver Form was provided to him in Spanish. (/d. at pp. 11-12).

31

Rosario-Torres indicated that he understood the Miranda warnings and signed the Waiver

Form, which was in Spanish. (/d.). At the end of the interview, State Police officers drove

Rosario-Torres home because he did not have a ride.

Rosario-Torres asserts that the Miranda warnings were invalid based on the failure

to use a certified translator. (Doc. 1, p. 18). However, the record reflects that Rosario-

Torres was warned of his Miranda rights both orally and in writing, in Spanish, and he

signed a written acknowledgment and waiver of those rights, on a Spanish form. The

record further reflects that Corporal Gonzalez asked Rosario-Torres several times

throughout the interview if he had any difficulty understanding or communicating with

Corporal Gonzales, and Rosario-Torres never stated that he had any trouble. (Doc. 9-6, p.

10, N.T. Suppression Hearing 3/29/2010). Additionally, there is no evidence to suggest that

Rosario-Torres was physically harmed or threatened, there is no testimony that he was

deprived of food, water, or other physical needs, and there is no indication that the police

used unnecessary or overbearing psychological tactics to obtain an incriminating statement

from him. Indeed, Rosario-Torres does not allege that the environment was intimidating.

Additionally, there is no evidence that Rosario-Torres was under the influence of drugs or

alcohol such that he did not comprehend his Miranda rights. Rosario-Torres has not

provided clear and convincing evidence that his “will was overborne in such a way as to

render his confession the product of coercion.” Fulminante, 499 U.S. at 288. For these

32

reasons, the Court will deny the habeas petition as to this claim.

2. Consent to Search Cell Phone

Rosario-Torres next asserts that his Fourth Amendment rights were violated

because he did not knowingly and voluntarily consent to the search of his cell phone. (Doc.

1, p. 18).

In Stone v. Powell, the United States Supreme Court held that “[w]here the State has

provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v.

Powell, 428 U.S. 465 (1976). The Third Circuit Court of Appeals stated, “[ulnder Stone v.

Powell, a federal court may not reexamine the state court’s determination that no Fourth

Amendment violation occurred, that a violation had occurred but that introduction of its fruits

was harmless, or that any Fourth Amendment violation that might have occurred had

harmless results.” Gilmore v. Macks, 799 F.2d 51, 56 (3d Cir. 1986) (citing Stone, 428 U.S.

465).

In the instant matter, Rosario-Torres raised this Fourth Amendment claim in state

court. Rosario-Torres filed a pretrial motion wherein he sought suppression of the evidence

in question. On March 29, 2010, a suppression hearing was held and Corporal Gonzalez,

the officer who translated between Rosario-Torres and Corporal Cavallaro, testified as

33

follows:

Q: Now during your translation between Mr. Torres and Corporal

Cavallaro, did you have any problems understanding Mr. Torres?

A: No.

Q: Did he indicate that he was having any problems understanding you?

A: No.

Q: Did he seem to respond to your questions appropriately, like he

understood them?

A: Yes.

Q: — Corporal | show you what has been marked as Commonwealth's

Exhibit No. 2, could you look at that please? Do you recognize what

that document is a copy of?

A: Yes tdo.

Q: What is that document a copy of?

A: _ Itis a Waiver of Rights and Consent to Search. And the specific item

was the Defendant's cell phone.

Q: And did you read this form to the Defendant in the Spanish language?

A: the Spanish language. | interpreted into Spanish what is written

here in English.

Q: And, | guess that was my question. This form is in English, is that

correct?

A: — Correct.

Q: — And you interpreted the English word into Spanish?

34

A: Yes.

Q: — For Mr. Torres?

A: Yes.

Q: Asitis on this form?

A: Yes sir.

Q: Did Mr. Torres appear to understand what you were asking him?

A. Yes.

Q: And after that, did he give consent for the Pennsylvania State Police to

take his cell phone that he had on him?

A: Yes he did.

Q: Did Mr. Torres appear to have any problem understanding your

translation of this into Spanish?

A: No, it was—and | repeated it and we made very clear that he

understood.

Q: And did Mr. Torres sign this document in several places?

A: Yes,

Q: Specifically he signed it indicating he was giving the Pennsylvania

State Police consent to [search] the cell phone that he had on him: is

that right?

A: Yes sir.

Q: Now when interpreting this consent form to Mr. Torres, either before,

during, or after the interpretation of this did you threaten Mr. Torres in

any way in order to have him sign this?

35

A: No.

Q: — Was anybody else there in your presence at the time that you heard

them threaten Mr. Torres with regard to him signing this document?

A: No.

Q: And the same goes for the previous document, Commonwealth's

Exhibit No. 1, did you make any threats to Mr. Torres in order to get

him to waive his Miranda Rights?

A: No.

Q: And did you hear anybody else make any threats to Mr. Torres?

A. No,

Q: Now at some point after this Consent to Search Form is signed, there

is a member of the Pennsylvania State Police actually then take Mr.

Torres’ cell phone?

A: Yes.

Q: — Butis was only after this was signed, correct?

A: Absolutely.

Q: — Throughout this entire time that you were with Mr. Torres, did you ever

have any problems understanding him speaking in Spanish?

A: No sir.

Q: And did he ever indicate to you that he was having any problem

understanding you speaking the Spanish language to him?

A: No sir and | made sure that | asked him several times during just to

make sure that we were clear on our communication and he was okay.

36

Q: And you said he responded appropriately to your questions; not like he

didn’t understand what the question was, is that correct?

A: _ That is correct.

(Doc. 9-6, pp. 14-18, N.T. Suppression Hearing 3/29/10, 14:2-18:3). The trial court denied

the suppression motion, and found that Rosario-Torres effectively communicated with the

police officers, indicated that he understood the consent form, and waived his rights as it

related to a search, before turning over his cell phone to the police. (Doc. 9-7). The trial

court further found that there was no evidence presented to indicate that the translation of

the Miranda warnings or consent were inadequate or erroneous. (Jd. at p. 2). After the trial

court issued its opinion denying the suppression motion, Rosario-Torres then raised his

Fourth Amendment claim on direct appeal. (Doc. 9-25, pp. 15-16, 44-47). On September

13, 2011, the Pennsylvania Superior Court affirmed the trial court opinion. (Doc. 9-27). The

Pennsylvania Supreme Court denied Rosario-Torres’ petition for allowance of appeal.

The Fourth Amendment claim presented by Rosario-Torres in the instant petition

relates to the suppression issues in the underlying criminal case. It is clear that Rosario-

Torres was previously afforded a full and fair hearing on his Fourth Amendment claim,

having raised this issue with the Pike County Court of Common Pleas, subsequently

appealing this issue to the Superior Court, which affirmed the trial court, and having his

request to appeal to the Supreme Court of Pennsylvania denied. Consequently, because

37

Rosario-Torres was afforded “full and fair litigation” of his Fourth Amendment claim in state

court, this Court is precluded from considering the merits of this Fourth Amendment claim

raised in the instant federal habeas petition. Stone, 428 U.S. at 494.

F. Grounds Six, Seven, and Eight’

In grounds six, seven, and eight, Rosario-Torres raises several issues regarding one

of the Commonwealth’s key witnesses, Megaly Echevarria. (Doc. 1, pp. 20-24). The Court

finds that Rosario-Torres has not identified any state court decision which is contrary to, or

an unreasonable application of, constitutional law, other than making the same claims he

made in state court.

The right to cross-examine witnesses and present evidence is a basic right

guaranteed by the Due Process Clause of the Fourteenth Amendment. U.S. CONST.

amend. XIV. “A person’s right to reasonable notice of a charge against him, and an

opportunity to be heard in his defense-a right to his day in court-are basic in our system of

jurisprudence; and these rights include, as a minimum, a right to examine the witnesses

against him, to offer testimony, and to be represented by counsel.” Pointer v. Texas, 380

U.S. 400, 405 (1965) (citation omitted).

Furthermore, the Sixth Amendment's Confrontation Clause guarantees that, “[iJn all

* Respondents argue that grounds six, seven, and eight were presented to the state courts as

Claims of trial court error under state law, not as a federal violations and, as such, were waived under state

law and procedurally defaulted in this forum. (Doc. 9, pp. 28-31). The Court finds that these claims were

fairly presented to the state courts and are subject to review on the merits. (See Doc. 9-25, pp. 48-62).

38

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. CONST. amend. VI. “The Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)

(emphasis in original)); see also United States v. Lore, 430 F.3d 190 (3d Cir. 2005). Itis

well-settled that “trial judges retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the issues, the witness’

safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S.

at 679.

The United States Court of Appeals for the Third Circuit recognizes a two-part test to

determine if a violation of the Confrontation Clause has occurred. See United States v.

Noel, 905 F.3d 267, 268 (3d Cir. 2018) (citing United States v. Chandler, 326 F.3d 210, 219

(3d Cir. 2003)). First, the court must determine whether the evidentiary ruling at trial

“significantly inhibited [the defendant's] effective exercise of [his] right to inquire into (the]

witness's ‘motivation in testifying.” Chandler, 326 F.3d at 219. Second, “if the District

Court's ruling did significantly inhibit [the defendant's] exercise of that right, whether the

constraints it imposed on the scope of [the defendant's] cross-examination fell within those

39

‘Teasonable limits’ which a trial court, in due exercise of its discretion, has authority to

establish.” /d.

1. Ground Six

In ground six, Rosario-Torres claims that his due process and Sixth Amendment

confrontation rights were violated when the trial court precluded cross-examination or use of

extrinsic evidence of Echevarria’s past drug use, and precluded the defense from

presenting expert testimony related to the effect of past drug use on the ability to testify and

recall events. (Doc. 1, p. 20).

In consideration of the issues raised in ground six, the trial court applied the

appropriate state law standards for cross-examination testimony. (See Doc. 9-24, pp. 21-

23). With respect to Echevarria’s past drug use, the trial court, relying on Pennsylvania

state law, granted in part and denied in part the Commonwealth's request with respect to

this line of questioning. (/d.). The trial court ordered that “[e]vidence of past drug use

unrelated to Ms. Echevarria’s ability to recall or which did not occur at the time of an

occurrence to which she is testifying is precluded.” (/d. at pp. 21-22, citing Trial Court

Order, 4/27/10). Thus, Rosario-Torres was permitted to question Echevarria about her drug

use at the time of the murder when she acted as a translator between Rosario-Torres and

his co-defendant. (/d.). However, he was precluded from questioning Echevarria about her

drug use beyond that relevant time period. (/d.).

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Rosario-Torres also argues that the trial court erred in barring him from introducing

expert testimony and other extrinsic evidence regarding Echevarria’s past drug use at times

other than those which were the subject of her testimony. (Doc. 1, p. 20). The trial court

concluded that such evidence was inadmissible for the same reason cross-examination of

Echevarria herself would have been impermissible. (Doc. 9-24, pp. 22-23),

It is clear that the trial court reasonably determined that this testimony and evidence

related to Echevarria’s past drug use would not have been admissible or relevant. The

State court's decision is not contrary to, or an unreasonable application of, relevant

constitutional law, nor is it an unreasonable determination of the facts in light of the

evidence presented. Therefore, Rosario-Torres is not entitled to habeas relief on this claim.

2. Ground Seven

In ground seven, Rosario-Torres claims that his due process and Sixth Amendment

confrontation rights were violated when the trial court precluded cross-examination of

Echevarria regarding her recent hospitalization in a mental health facility.> (Doc. 1, pp. 21-

22). In setting boundaries with regard to this line of questioning, the trial court relied on

* Rosario-Torres also claims that the trial court's rulings violated the Compulsory Process

Clause of the Sixth Amendment. (Doc. 1, p. 21). The Court need not address this claim because “(t]nere

is apparently little, if any, difference” between the scope of the Compulsory Process and Due Process

Clauses. Gov't of Virgin Islands v. Mills, 956 F.2d 443, 445 n. 4 (3d Cir. 1992); see also Pennsylvania v.

Ritchie, 480 U.S. 39, 56 (1987) (stating that the compulsory process clause “provides no greater

protections . . . than those afforded by due process . . .”) (emphasis in original); Cikora v. Dugger, 840 F.2d

893, 897 n. 4 (11th Cir.1988) (“[Wle believe that the standards for assessing the sixth amendment violation

and a violation of due process itself are in context-a challenge to a trial court ruling excluding evidence or

testimony.”).

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Pennsylvania state law governing appropriate cross-examination testimony. (Doc. 9-24, pp.

27-30). The trial court limited cross-examination regarding Echevarria’s hospitalization for a

purported suicidal ideation, and found as follows:

[T]he trial court was presented with a witness who potentially suffered from

suicidal ideations. There was no basis to conclude that such condition would

have impacted Echevarria’s ability to accurately observe and report the

events which were the subject of her testimony. Accordingly, the trial court

concluded that such evidence was inadmissible and therefore granted the

Commonwealth's request. See Trial Court Order, 4/27/10.

To the extent Torres sought to present evidence regarding a hospitalization

unrelated to the specific issue of Echevarria’s suicidal ideations, the trial

court's ruling had no bearing on his ability to do so. This was expressly

explained to counsel on the record during trial in a sidebar conference:

THE COURT: This is for purposes of the record. During lunch

time | had an opportunity to meet with counsel regarding

requests for clarification of prior Court Orders regarding

Motions In Limine and the Admissibility of Evidence. For

purposes of these proceedings, prior Orders have been entered

as it relates to each of these issues.

[T]he other issue was the admissibility of [Echevarria’s] mental

health. You can ask questions regarding the issues of mental

health that would go to her ability to remember, to observe and

recall. But in terms of things like depression, you know being

suicidal that is not admissible. It doesn’t go to ability to recall.

It doesn’t go to credibility either. It does with mental health.

ATTORNEY TONKIN: As | understand it your Honor, then,

basically the questions of what you're permitting is, were you

hospitalized for something and does that affect your ability to

remember or recall today?

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THE COURT: Not Recall today, recall at any time.

ATTORNEY TONKIN: Well, yeah. Recall the events of this

that had intervened.

THE COURT: Yes.

ATTORNEY TONKIN: Okay.

N.T. 5/3/10, at 113-117.

Ultimately, defense counsel did cross-examine Echevarria regarding her

recent hospitalizations. Echevarria admitted to being hospitalized on more

than one occasion prior to trial, but stated that such hospitalizations were for

asthma-related problems. N.T. 5/3/10, at 140-41. Accordingly, the issue of

her hospitalizations was explored to the fullest extent allowable by law, and

Torres’ argument on appeal lacks merit.

(Doc. 9-24, pp. 29-30).

Having reviewed the trial record and state court decision, it is plain that

the state court’s decision is not contrary to, or an unreasonable application of,

constitutional law, nor is it an unreasonable determination of the facts in light

of the evidence presented. Rosario-Torres is not entitled to habeas relief on

this claim.

3. Ground Eight

In ground eight, Rosario-Torres claims that the trial court erred in quashing defense

counsel’s subpoena to obtain Echevarria’s mental health records and denying the defense’s

request for a mental health evaluation to be conducted on Echevarria. (Doc. 1, pp. 23-24).

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The trial court denied the request to subpoena Echevarria’s medical records, and concluded

that the hospital was legally prohibited from producing any records or any witnesses to

testify with respect to Echevarria’s treatment. (Doc. 9-24, pp. 23-25). In reaching its

conclusion, the trial court relied on Pennsylvania state law and the protection of the

patient-psychiatrist privilege. (Id.).

The trial court further concluded that there was no basis to compel Echevarria to

participate in an involuntary psychological evaluation. (Doc. 9-24, pp. 25-27). The trial

court noted that, at the time of the request, the court had not yet observed Echevarria

testify, which, pursuant to Pennsylvania law, compelled the court to deny Rosario-Torres’

request for a psychological evaluation. (/d.). The trial court further noted that even if it

could have engaged in a competency investigation, there was simply no evidence in the

record to warranting a psychological evaluation of Echevarria. (Id.).

Upon consideration of the record, the Court does not find that the state court's

findings were contrary to clearly established Constitutional law or were an unreasonable

application of the facts in light of the evidence presented. The Court will deny ground eight.

G. Ground Nine

Rosario-Torres next alleges that the trial court erred by denying his motion for

transcripts of certain oral arguments that took place prior to trial. (Doc. 1, p. 25). The

Superior Court, in affirming Rosario-Torres’ judgment of sentence, addressed this issue as

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follows:

We note that Torres raises an issue regarding the trial court’s denial of a

motion for transcripts pertaining to oral arguments held by the trial court. This

issue was not raised in Torres’ Pa.R.A.P. 1925(b) statement and, as a result,

was not addressed by the trial court in its Rule 1925(a) opinion. Any issues

not raised in a Rule1925(b) statement will be deemed waived on appeal.

Commonwealth v. Lord, 719A.2d306 (Pa. 1998). This issue is, accordingly,

waived.

(Doc. 9-37, p. 12, n. 3).

To properly exhaust his state remedies, Rosario-Torres was required to fairly present

his claims to the state court, either on direct appeal or by collateral review. See Castille v.

Peoples, 489 U.S. 346, 349-50 (1989): Blasi v. Attorney General of Pa., 30 F. Supp. 2d 481,

487 (M.D. Pa. 1998). The record is clear that Rosario-Torres waived ground nine under

state law. This claim is thereby defaulted. See Coleman v. Thompson, 501 U.S. 722, 750

(1991); Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (concluding, “if the final state

court presented with a federal claim refuses to decide its merits based on an established

state rule of law independent of the federal claim and adequate to support the refusal,

federal habeas review is foreclosed”). Rosario-Torres’ failure to timely and properly pursue

this claim at the state level constitutes an independent and adequate state ground sufficient

to support a procedural default of the claim. See Barnhart v. Kyler, 318 F. Supp.2d 250

(M.D. Pa. 2004). Rosario-Torres is not entitled to federal habeas review of this claim unless

he can meet his burden of establishing “cause for the default and actual prejudice as a

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result of the alleged violation of federal law or demonstrate that failure to consider the

claims would result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750;

Norris v. Brooks, 794 F.3d 401, 404 (3d Cir. 2015). Rosario-Torres fails to acknowledge his

procedural default of this claim, and fails to allege any cause and prejudice to excuse it.

(See Doc.1; Doc. 10, p. 38); see also Teague v. Lane, 489 U.S. 288, 298 (1989) (holding

that the petitioner's failure to allege cause for his default precluded federal habeas review of

a defaulted claim). Nor is there any indication that a failure to review this claim will result in

a fundamental miscarriage of justice. Consequently, Rosario-Torres is precluded from

pursuing federal habeas corpus relief with regard to his claim regarding the trial court’s

denial of a motion for transcripts pertaining to oral arguments held by the trial court.

H. Ground Ten

Rosario-Torres alleges that trial counsel was ineffective for advising him not to testify

at trial. (Doc. 1, p. 26). The test for ineffective assistance of counsel is a well-settled and

firmly established one containing two components. “First, the defendant must show that

counsel's performance was deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “Second, the

defendant must show that the deficient performance prejudiced the defense. This requires

showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a

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trial whose result is reliable.” /d.

Rosario-Torres’ ineffective assistance of counsel claim was addressed in the context

of the PCRA proceedings. (Doc. 9-42). The Superior Court rejected Rosario-Torres’

ineffectiveness challenge and affirmed the PCRA court's opinion. Commonwealth v.

Torres, 2016 WL 2352826. The Superior Court found as follows:

Torres argues that Attorney Weinstein rendered ineffective assistance, and

interfered with Torres’s right to testify in his own defense, by unreasonably

advising Torres not to testify at trial. Turner/Finley Brief at 11; Pro Se Brief

for Appellant at 18-19. Torres alleges that

[dJuring [pre-trial] preparations, he told [Attorney] Weinstein that

he wanted to testify... . In response, [Attorney] Weinstein told

him that his testimony was not necessary. ... [] Torres

remained adamant in his desire to testify on his own behalf, but

[Attorney] Weinstein told him that he would only do damage to

the case if he did.

Id. at 18; see also id. (asserting that “Torres felt he had [no]

choice but to obey his lawyer's instructions”). Additionally,

Torres urges that, “[iJn light of the porous explanations

[Attorney] Weinstein offered [at the PCRA Hearing] for keeping

his client off the witness stand, it is much more probable that [ ]

Torres'|s] testimony concerning his attorney's advice was the

truth.” /d. at 21.

To prevail on a claim of ineffectiveness of counsel, the PCRA petitioner must

demonstrate “(1) that the underlying claim is of arguable merit; (2) that

counsel's course of conduct was without a reasonable basis designed to

effectuate his client's interest; and (3) that he was prejudiced by counsel’s

ineffectiveness[.]” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super.

2012) (citations omitted). The PCRA court may deny an ineffectiveness claim

if the petitioner's evidence fails to meet any of these prongs. Commonwealth

v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010). Moreover, a PCRA

petitioner bears the burden of demonstrating counsel's ineffectiveness. /d.:

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see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (stating that

“[w]hen evaluating ineffectiveness claims, judicial scrutiny of counsel's

performance must be highly deferential.” (citation and internal quotation

marks omitted)).

The decision to testify on one’s own behalf

is ultimately to be made by the accused after full consultation

with counsel. In order to support a claim that counsel was

ineffective for “failing to call the appellant to the stand,” the

appellant must demonstrate either that (1) counsel interfered

with his client's freedom to testify, or (2) counsel gave specific

advice so unreasonable as to vitiate a knowing and intelligent

decision by the client not to testify in his own behalf.

Commonwealth v. O’Bidos, 849 A.2d 243, 250 (Pa. Super. 2004) (citation and

brackets omitted). “Counsel is not ineffective where counsel's decision to not

call the defendant was reasonable.” Commonwealth v. Breisch, 719 A.2d

352, 354-55 (Pa .Super. 1998). Additionally, regarding the second prong of

the ineffectiveness test,

counsel's assistance is deemed constitutionally effective if he

chose a particular course of conduct that had some reasonable

basis designed to effectuate his client’s interests. Where

matters of strategy and tactics are concerned, a finding that a

chosen strategy lacked a reasonable basis is not warranted

unless it can be concluded that an alternative not chosen

offered a potential for success substantially greater than the

course actually pursued.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations, quotation

marks and brackets omitted).

In its Opinion, the PCRA court addressed Torres’s ineffectiveness challenge

as follows:

[Torres] has failed to establish all three prongs of the

ineffectiveness] test[,] and his testimony at the... PCRA

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Hearing [ ] lacked credibility.

First, Attorney Weinstein’s testimony indicates his advice was both

reasonable and logical under the circumstances. During the PCRA Hearing,

Attorney Weinstein testified that [Torres], through an interpreter, informed

Attorney Weinstein that he shot the victim. PCRA Hr’g Tr. vol. 1, [at] 24... .

[Torres] then reneged, but finally admitted to the shooting[,] without [an] intent

to kill the victim. /d., at 24-25. In addition, Attorney Weinstein testified as to

evidence involving the tracing of cellular telephones[,] which would have

contradicted [Torres’s] testimony as to his location at the time of the incident.

Id., at 25. Based on this information, Attorney Weinstein indicated his

reluctance to recommend [that Torres] testify on his own behalf to avoid

solicitation of perjury. /d., at 24. Furthermore, Attorney Weinstein testified

that he wanted to separate [Torres] from his co-defendant [,Joseph Atwell],

felt that separation would be established by the evidence alone, and that

[Torres’s] testimony would interfere with that distinction. /d., at 26-28. Th{e

PCRA cjourt is convinced [that] Attorney Weinstein’s strong recommendation

that [Torres] not testify on his own behalf was a reasonable and logical trial

strategy.

Second, [Torres’s] position that he was denied his right to testify on his own

behalf lacks credibility. [Torres] testified [at the PCRA Hearing that] he did

discuss the right to testify with Attorney Weinstein [ ]. PCRA Hr’g Tr. vol. 4,

9-8.... [Additionally, Torres executed an] Affidavit dated December 29,

2012, [which] indicates:

[Attorney] Weinstein initiated a discussion with me, advising me

that he did not need me to take the stand because now the

case “looked good for us.”... The defense rested without me

taking the stand. It was on the basis of that advice that | used

my right to remain silent and did not testify.

[ ]Torres Aff. December 29, 2012. This language is a clear indication that the

decision not to testify on his own behalf was made by [Torres,] based upon

the advice of Attorney Weinstein. Attorney Weinstein’s testimony offered at

the PCRA Hearing verifies as much. PCRA Hr'g Tr. vol. 1, 22-23. ...

Therefore, . . . Attorney Weinstein had both a logical and reasonable basis for

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his recommendations to [Torres,] and th[e PCRA cjourt is not convinced that

the result of [Torres’s] trial would have been different if [Torres] had testified

on his own behalf.

PCRA Court Opinion, 6/1/15, at 6-7 (emphasis in original); see also Order,

3/9/15, at 2 (stating that Attorney Weinstein “is an extremely experienced

defense attorney with 40 years of criminal [defense] experience, a great deal

of knowledge of the law and the legal process, including how to actually

handle jury trials, and [he has] a full understanding of his responsibility to both

the client and the Court. Based upon all of that knowledge and experience,

his advice to [Torres] was both logical and legal[,] and certainly qualified as

effective assistance of counsel.”).

Our independent review of the record shows that the PCRA court’s sound

rationale is supported by the record, and we therefor[e] affirm on this basis in

rejecting Torres’s ineffectiveness challenge regarding Attorney Weinstein.

See PCRA Court Opinion, 6/1/15, at 6-7; see also Spotz, supra.

Commonwealth v. Torres, 2016 WL 2352826, at *3-5 (footnotes omitted).

It is clear that the state courts’ adjudication of Rosario-Torres’ ineffective assistance

of counsel claim resulted in a decision that was based on a reasonable determination of the

facts in light of the evidence presented at the PCRA hearing. Consequently, Rosario-Torres

is not entitled to relief on this claim.

V. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate

of appealability (“COA”), an appeal may not be taken from a final order in a proceeding

under 28 U.S.C. § 2254. A COA may issue only if the applicant has made a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A petitioner satisfies

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this standard by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. “When

the district court denies a habeas petition on procedural grounds without reaching the

prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at

least, that jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). Here, jurists of reason would not find the disposition of this case

debatable. Accordingly, a COA will not issue.

Vi. Conclusion

The Court will deny Rosario-Torres’ application (Doc. 1) for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. A separate Order shall issue.

Sieh

Lb Ly /

Robert D. Marfani

United States District Judge

Dated: November to , 2019

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