The opinion
J-S65004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARMELO RODRIGUEZ :
:
Appellant : No. 738 MDA 2018
Appeal from the PCRA Order April 5, 2018
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001581-2014
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 11, 2019
Appellant, Carmelo Rodriguez, appeals from the order denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the factual and procedural history of this
case as follows:
[Appellant] was charged with two counts of Aggravated
Assault1 relating to an incident that occurred on August 4, 2014.
[Appellant] waived the preliminary hearing on September 18,
2014, and the formal arraignment on October 25, 2014. The
matter first went to jury trial, which ended in a mistrial on April
13, 2015. A second jury trial was held on June 4, 2015, resulting
in [Appellant] being found guilty on both counts of Aggravated
Assault. Our November 30, 2015 Opinion adequately sets forth
the facts reflected at trial as follows:
1 18 Pa.C.S.A. § 2702(a)(1); 18 Pa.C.S.A.
§ 2702(a)(4).
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Michael Morris (hereinafter “Morris”), a friend of
Randy Wolfe (hereinafter “victim”) testified for the
Commonwealth. On August 4, 2014, Morris and the
victim were at the William Penn bar (hereinafter “bar”)
in Lebanon, having a couple of drinks. Morris stated
that when they were at the bar, the victim, who is
very outgoing, was socializing with several people,
playing games and performing magic tricks. At a later
point in the evening, Morris heard a commotion by the
door and saw the victim with three guys; Frank Velez
(hereinafter “Velez”), [Appellant] and Dennis Kreider
(hereinafter “Kreider”).
Morris followed the group outside and saw the
victim, [Appellant] and Velez walking up the street;
the victim and Velez were arguing. Morris stated that
when [Appellant] walked behind a tree, he bent down
where loose bricks were present. At some point
during the verbal altercation between the victim and
Velez, the victim spit on [Appellant]. The victim told
[Appellant] it was an accident and Morris stated the
victim went to wipe the spit off of [Appellant]. When
the victim went to wipe the spit off of [Appellant],
[Appellant] hit the victim and the victim fell straight
back. When Morris saw the victim get hit, he punched
[Appellant], knocking him down. [Appellant] and his
two friends immediately got in their car and left.
Kreider testified that he and [Appellant] have
been friends for approximately 30 years. When
Kreider, Velez and [Appellant] were in the bar, Kreider
saw Velez hit the victim in the face one time and heard
the victim scream to Velez that Velez “hit like a girl.”
Thereafter, the bartender told [Appellant] and Velez
to leave the bar. Kreider followed them outside, at
which point [Appellant], Velez and the victim were
already walking away down the street, with
[Appellant’s] back towards Kreider.
Shortly after coming outside, Kreider witnessed
[Appellant] make a “fighting motion,” and then the
victim’s friend, Morris, punched [Appellant] in the
face. Kreider, Velez and [Appellant] immediately
headed to their car and left. As they were leaving,
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Kreider heard a girl yell, “you pussy, you hit him with
a brick.” When Kreider asked [Appellant] in the car if
[Appellant] hit the victim with a brick, [Appellant]
replied, “I hit the nigger.” However, Kreider did not
see [Appellant] hit the victim with a brick.
Velez testified that during his time at the bar,
he got into a physical altercation with the victim where
he threw a few punches because the victim had gotten
in Velez’s face about a petty argument Velez was
having with a third individual. Velez stated that he
did not knock the victim over and that he didn’t see
any injuries besides “maybe a little blood on the side
of his like lip or something” As Velez was trying to
leave the bar, the victim was blocking Velez’s way,
until the bartenders forced the victim out of the way
so Velez could leave.
When Velez went outside, the victim followed,
wanting to continue the altercation that was started in
the bar. At this point Velez stated “I was backing up
and...his arms were flailing. He said he wanted to get
into it with me. So as I was backing up and I was
taking off my shirt and my jewelry and then in an
instant hey, let’s get out of here.” Velez testified that
he did not see the victim get hit or see the victim
laying on the ground because after he took off his shirt
and jewelry, his friend was telling Velez to leave.
When Velez, Kreider and [Appellant] got into the car
to leave, [Appellant] asked Velez to take the blame
for what happened, but Velez did not know what had
happened and did not want to take the blame for
anything. The next morning, the police asked Velez
to come in to talk about what occurred the previous
night, and he came in to cooperate with the police.
***
The Commonwealth also presented stipulated
medical testimony from Dr. John Kelleher, a
neurosurgeon at the Penn State Milton Hershey
Medical Center and Dr. Jessica Lighthall, an
Otolaryngologist. Dr. Kelleher determined that the
skull fractures suffered by the victim were caused by
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blunt force trauma to the head, requiring a large
amount of force to cause the injuries sustained.2 Dr.
Lighthall was on call the evening that the victim was
transported to the Penn State Milton Hershey Medical
Center and was needed to assist with the victim’s
injuries due to their complex nature. Dr. Lighthall’s
stipulated medical testimony closely mirrored Dr.
Kelleher’s testimony, specifically that the injury was
caused by a blunt object and the injury is one that
would require a significant amount of force.
2Dr. Kelleher made the following post-
operative diagnoses:
1. Comminuated frontal depressed skull
fracture;
2. Subarachnoid hemorrhage;
3. Pneumocephalus;
4. Intraparenchymal hemorrhage;
5. Diffuse axonal injury;
6. Orbital wall fractures; and
7. Complex midface fractures which
shifted the face to the right.
Amber Green, a Forensic DNA scientist working
with the Pennsylvania State Police was qualified as an
expert and testified in regards to the DNA samples
taken from the brick, which was collected at the scene
of the incident. Ms. Green opined that one DNA
sample from the brick matched the DNA sample given
by the victim. Ms. Green further opined that
[Appellant] could not be included as a contributor to
the DNA samples collected from the brick.
[Appellant] took the stand and testified that
while he was at the bar on August 4, 2014, he saw
Velez get into an argument with the victim and
subsequently punch the victim twice in the face.
[Appellant] stated that he tried to deescalate the
situation while in the bar by getting between Velez
and the victim. When they were outside, [Appellant]
stated he just watched Velez and the victim and [sic]
argue. After the victim spit on him, the victim reached
out towards [Appellant]. The victim’s action of
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reaching out towards [Appellant] made [Appellant]
feel threatened and he punched the victim in the face.
[Appellant] did not see what happened to the victim
after he punched him because he was hit from the side
and then immediately left with Velez and Kreider.
[Appellant] was sentenced on August 19, 2015, to an
aggregate sentence of six (6) to twenty (20) years in a State
Correctional Facility. [Appellant] filed Post-Sentence Motions on
August 31, 2015, which this court denied by Order dated
December 4, 2015. [Appellant] appealed our decision and the
Superior Court affirmed in a Memorandum Decision dated October
4, 2016.
[Appellant] filed a pro se PCRA Petition on December 2,
2016. This court appointed counsel to represent [Appellant] and
a counseled Amended Petition was filed on January 23, 2017. . . .
A PCRA hearing was conducted on December 21, 2017.
PCRA Court Opinion, 4/5/18, at 1-6 (internal citations omitted).
The PCRA court dismissed Appellant’s PCRA petition on April 5, 2018,1
and Appellant filed his timely appeal on April 23, 2018. The PCRA court and
Appellant complied with Pa.R.A.P. 1925.2
Appellant presents the following issue for our review: “Did the Trial
Court err in ruling that trial counsel was not ineffective for failing to interview
____________________________________________
1 There is no indication in the record that the PCRA court provided Appellant
with notice of its intent to dismiss his PCRA petition pursuant to Pa.R.Crim.P.
907. However, Appellant has not challenged this omission on appeal. The
failure to challenge the absence of a Rule 907 notice constitutes waiver.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).
2In an order filed pursuant to Pa.R.A.P. 1925(a) on June 26, 2018, the PCRA
court stated that “we find that all errors lack merit and have been sufficiently
addressed in our Order and Opinion filed April 5, 2018.” Order, 6/26/18, at
1.
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and call witnesses who were mentioned in discovery materials as having been
at or near the crime scene where the alleged assault took place?” Appellant’s
Brief at 5.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination, and whether the PCRA court’s
determination is free of legal error. Commonwealth v. Hernandez, 79 A.3d
649, 651 (Pa. Super. 2013). “The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.” Id.
Appellant’s issue raises claims of ineffective assistance of counsel.
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975–76 (1987): (1) the underlying legal claim has arguable
merit; (2) counsel had no reasonable basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of
counsel’s ineffectiveness.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). With regard to the
second, reasonable-basis prong, “we do not question whether there were
other more logical courses of action which counsel could have pursued; rather,
we must examine whether counsel’s decisions had any reasonable basis.”
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). “A chosen
strategy will not be found to have lacked a reasonable basis unless it is proven
that ‘an alternative not chosen offered a potential for success substantially
greater than the course actually pursued.’” Commonwealth v. Williams,
899 A.2d 1060, 1064 (Pa. 2006). “In order to meet the prejudice prong of
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the ineffectiveness standard, a defendant must show that there is a
‘reasonable probability that but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Commonwealth v. Reed, 42
A.3d 314, 319 (Pa. Super. 2012).
A claim of ineffective assistance of counsel will fail if the petitioner does
not meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with
Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
Appellant argues that trial counsel was ineffective for failure to interview
and subpoena for trial two witnesses: John Orner and Zachary Edwards.
Appellant’s Brief at 18. Appellant maintains that “it is clear that the testimony
of both John Orner and Zachary Edwards offered a potential for success
substantially greater than Attorney Judd’s strategy of not interviewing them
and not subpoenaing them for trial.” Id. at 18.
To establish that counsel was ineffective for failing to call a
witness, Appellant must demonstrate that: (1) the witness
existed; (2) the witness was available to testify for the defense;
(3) counsel knew of, or should have known of, the existence of
the witness; (4) the witness was willing to testify for the defense;
and (5) the absence of the testimony of the witness was so
prejudicial as to have denied the defendant a fair trial. Failure to
call a witness is not per se ineffective assistance of counsel, for
such a decision implicates matters of trial strategy. It is
Appellant’s burden to demonstrate that trial counsel had no
reasonable basis for declining to call . . . a witness.
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (internal
citations omitted).
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Herein, both John Orner and Zachary Edwards testified at the PCRA
hearing. We begin with the testimony provided by John Orner at that hearing,
as summarized by the PCRA court:
At the PCRA hearing, [Appellant] first called John Orner to
testify. Mr. Orner testified that he was at the William Penn Bar on
August 4, 2014, when he observed a blonde guy and a man named
Frank [Velez] swinging at each other as they were being pushed
outside by a large group. Mr. Orner went outside where he saw
the incident continue as Frank [Velez] took off his shirt and got
ready to fight the blonde man and then he saw the blonde man
drop. Mr. Orner stated that he saw a man in a blue t-shirt pick up
a brick and come around and hit the blonde man in the head.
After the blonde man went down, Mr. Orner saw three men run
towards a car. Mr. Orner ran out to help the man who had been
hit and took down the license plate number of the car the three
men entered.
When questioned by [Appellant’s] counsel regarding
inconsistencies between his testimony at the hearing and the
police report, Mr. Orner stated that the statement he gave to
police officers was consistent with his recollection of events at the
hearing, but that the police officer was not paying attention to
him. Mr. Orner testified that he was contacted by the District
Attorney’s office but not by [Appellant’s] trial attorney and that he
was never subpoenaed to testify at the trial.
PCRA Court Opinion, 4/5/18, at 6 (internal citations omitted).
In addressing Appellant’s claim that trial counsel was ineffective for
failing to call Mr. Orner as a witness, the PCRA court determined:
John Orner testified at the PCRA hearing that he was
available to testify at trial, he would have testified had he been
subpoenaed, and that, although he had spoken with the District
Attorney regarding this matter, he had not been contacted by
[Appellant’s] trial counsel. Furthermore, Mr. Orner’s statement
had been included in the police report and [Appellant] testified
that his review of the discovery revealed the same. Therefore,
the first through fourth prongs are satisfied and we are left to
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determine whether the absence of Mr. Orner’s testimony at trial
was so prejudicial as to deny [Appellant] a fair trial.
As the PCRA transcript revealed, Mr. Orner testified that he
saw [Velez] and the victim begin arguing inside and the fight
continued outside the bar. Once outside, Mr. Orner saw the two
men getting ready to fight and then saw a man in a blue t-shirt
pick up a brick. At the second jury trial, [Appellant’s] blue t-shirt
was entered into evidence and several people testified that
[Appellant] was wearing a blue shirt on the evening of the
incident. Furthermore, a video showing [Appellant] wearing a
blue shirt was also entered into evidence and presented to the
jury. [Appellant] attempts to persuade us that the trial attorney
could have used Mr. Orner’s testimony to impeach his statement
recorded by police. We find this attempt unavailing.
When counsel has chosen a particular course of strategy and
tactic with a reasonable basis to effectuate the client’s interests,
counsel’s assistance is generally deemed effective. Com. v. Miller,
819 A.2d 504 (Pa. 2002). Furthermore, hindsight comparison of
trial strategy with alternatives not employed must conclude that
the alternative strategy not employed would have offered a
greater potential for success. Id. at 517. [Appellant] has failed
to prove that trial counsel’s strategy was less successful than had
she presented Mr. Orner’s testimony, nor has he shown that the
absence of Mr. Orner’s testimony so prejudiced him as to deny
him a fair trial.
PCRA Court Opinion, 4/5/18, at 10-11 (some internal citations omitted).
We agree with the PCRA court’s determination. If Mr. Orner had testified
at trial, he would have stated that he saw an individual wearing a blue t-shirt
hit the victim in the head with a brick. N.T., 12/21/18, at 4-8. As noted by
the PCRA court, other testimony at trial would have established that Appellant
was wearing a blue t-shirt during the incident. PCRA Court Opinion, 4/5/18,
at 10-11. Accordingly, the absence of Mr. Orner’s testimony at trial did not
prejudice Appellant. In fact, introduction of Mr. Orner’s testimony at trial
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would have impacted Appellant’s position negatively, as it was evidence
reinforcing the conclusion that Appellant was guilty of the crimes charged.
Thus, Appellant has failed to establish that trial counsel was ineffective for
failing to interview Mr. Orner and to call Mr. Orner as a witness at trial.
We now consider the testimony that Zachary Edwards would have
provided at trial. The PCRA court aptly summarized Mr. Edwards’s testimony
at the PCRA hearing as follows:
Mr. Edwards, who was present for Mr. Orner’s testimony, stated
that “[p]retty much the same thing [Mr. Orner] said, the
altercation that happened. They all went outside. I didn’t go
outside. I didn’t follow them. I watched through the window from
what I could see.” Mr. Edwards testified that the victim, Randy,
was his boss and that he remembered an individual, later
identified as Frank Velez, approaching him earlier in the evening
and asking whether he had a problem with him and whether he
wanted to go outside and fight. Mr. Edwards continued that he
saw the victim, [Appellant] and [Velez] arguing and moving
around outside, but that he couldn’t see them clearly. Mr.
Edwards admitted that he did not see the victim get hit or who
picked up the brick, but just saw the victim fall to the ground.
Finally, Mr. Edwards saw [Velez] hit the victim two or three times
inside the bar, but did not see what happened outside the bar.
Mr. Edwards admitted that he had not been contacted by
the District Attorney or [Appellant’s] trial counsel and did not
receive a subpoena to testify at trial. However, had he been
subpoenaed, Mr. Edwards would have testified consistent with his
testimony at the hearing. On re-direct, Mr. Edwards admitted
again that he did not see [Appellant] strike the victim at all.
PCRA Court Opinion, 4/5/18, at 6-7 (internal citations omitted).
In addressing Appellant’s claim of ineffective assistance of counsel for
failure to interview Mr. Edwards or call Mr. Edwards as a witness at trial, the
PCRA court provided the following analysis:
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Mr. Edwards testified that he was available and would have
testified if subpoenaed, and admitted that he was never contacted
by [Appellant’s] trial attorney. Again, we are faced with a
determination of the prejudice upon [Appellant’s] ability to be
granted a fair trial with the absence of Mr. Edward’s testimony.
Mr. Edwards testified that the events occurred in
substantially the same way as Mr. Orner described. Mr. Edwards
testified that he told police that he saw [Velez] take off his white
shirt and that [Velez] was the person who hit the victim, though
he stated that this was while the two men were fighting inside the
bar. Mr. Edwards later identified [Velez] from a photo array.
However, Mr. Edwards admitted that he was inside the bar and
did not clearly see the events that occurred outside the bar.
Additionally, Mr. Edwards denied seeing who actually picked up
the brick or who hit the victim with the brick.
When applying the final prong of the prejudice suffered by
[Appellant] in the absence of Mr. Edwards’s testimony, we find
[Appellant’s] proof to be lacking. While [Appellant] contends that
Mr. Edwards’ testimony would have provided support for the
theory that someone other than [Appellant] committed the crime,
we find this argument lacking. We fail to see how the absence of
Mr. Edwards’ testimony that he didn’t see who committed the
crime to be prejudicial to [Appellant’s] right to a fair trial.
PCRA Court Opinion, 4/5/18, at 11-12.
We agree with the PCRA court’s determination. Mr. Edwards’s
testimony, had it been presented at trial, would not have had any impact on
the conclusion regarding Appellant’s guilt. Mr. Edwards testified that he did
not see who picked up the brick, or who hit the victim with the brick. N.T.,
12/21/18, at 14-15. Thus, the absence of Mr. Edwards’s testimony at trial did
not prejudice Appellant. Accordingly, Appellant has failed to establish that
trial counsel was ineffective for failing to interview Mr. Edwards or call him to
testify at trial.
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Appellant further asserts that “where there is a limited amount of
evidence of guilt, it is per se unreasonable not to attempt to investigate and
interview known eyewitnesses in connection with defenses that hinge on the
credibility of other witnesses,” pursuant to Commonwealth v. Dennis, 950
A.2d 945 (Pa. 2008). Appellant’s Brief at 24. Appellant maintains that
because there is no direct evidence that he hit the victim with a brick and only
circumstantial evidence supports Appellant’s convictions, pursuant to Dennis,
it was “per se unreasonable for Attorney Judd not to make any attempt to
investigate and interview Zachary Edwards and John Orner.” Id. at 24-25.
The PCRA court addressed this claim in its April 5, 2018 opinion, and
concluded as follows:
At trial, [Appellant’s] trial counsel presented two witnesses–
[Appellant] and a Forensic DNA analyst with the Pennsylvania
State Police who performed analysis on the evidence in this case.
The Forensic DNA analyst provided testimony to the effect that
while the victim’s DNA was found on the brick, [Appellant’s] DNA
was not. [Appellant] testified on his own behalf refuting the
testimony of other witnesses brought by the Commonwealth and,
while admitting that he punched the victim, denied hitting the
victim with the brick.
While the Supreme Court in Dennis did state that it is per
se unreasonable not to interview known eye witnesses where
defenses hinge on the credibility of other witnesses and there is a
limited amount of evidence of guilt, the Court also stated that such
does not support “the proposition that such an omission is per se
prejudicial.” [Dennis, 950 A.2d at 960-961]. In order to reach a
determination of prejudice, [Appellant] must prove that there was
a reasonable probability that the outcome of the trial would have
been different had counsel interviewed and/or called Mr. Orner
and Mr. Edwards to the stand. We cannot make such a
determination based on the testimony of the witnesses at the
PCRA hearing. Neither witness provided any further testimony
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affirming that [Appellant] was not the person who picked up the
brick and hit the victim. In fact, while Mr. Edwards testified that
he could not clearly see the events outside the bar, Mr. Orner
testified that he saw the man in the blue t-shirt pick up the brick.
If, as [Appellant] has suggested, trial counsel would have placed
Mr. Orner on the stand, only to then refute the credibility of his
testimony and statements to police, we fail to see how this would
have been helpful to [Appellant].
PCRA Court Opinion, 4/5/18, at 12-13.
The PCRA court’s determination is supported by the evidence of record
and is free of legal error. Thus, Appellant is entitled to no relief on his claims
of ineffective assistance of trial counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/11/2019
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