Com. v. Sanabria, R.

J-S09020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RADAMES SANABRIA :

:

Appellant : No. 618 EDA 2021

Appeal from the PCRA Order Entered January 14, 2021,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0001110-2011.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED MAY 2, 2022

Radames Sanabria appeals pro se appeals from the order denying his

first timely petition filed pursuant to the Post Conviction Relief Act (“PCRA”).

42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and procedural history are as follows: On August

10, 2010, at approximately 10:00 p.m., the fourteen-year-old victim and his

friends were hanging out on a street corner in North Philadelphia. Sanabria,

who was then seventeen years old, and Rafael Roman walked past the group

after which words were exchanged between the victim and Sanabria. As the

victim followed Sanabria and Roman across the street, Sanabria turned, pulled

a gun from his waistband, and fired four to five shots. The victim ran a short

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* Former Justice specially assigned to the Superior Court.

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distance up the street and then collapsed. Sanabria and Roman ran from the

scene. Medics arrived and transported the victim to a nearby hospital where

he was pronounced dead.

Several witnesses to the incident identified Sanabria as the shooter and

police recovered a video of the shooting from a business located near the

crime scene. A warrant was subsequently issued for Sanabria’s arrest, and

police took him into custody on September 14, 2010.

At his jury trial, three people—Corey Jones, Luis Ortiz, and Roman—

identified Sanabria as the shooter based on their own recollections as well as

from the video of the shooting introduced into evidence and shown to the

jury.1 A fourth witness, Danny Rivera, did not see the shooting, but provided

additional corroboration of the Commonwealth’s version of the incident. On

October 12, 2012, the jury convicted Sanabria of first-degree murder and

firearm offenses. Thereafter, trial court sentenced Sanabria to an aggregate

term of thirty-nine years to life imprisonment.

Sanabria appealed to this Court, and we affirmed his judgment of

sentence on March 23, 2018. Commonwealth v. Sanabria, 188 A.3d 549

(Pa. Super. 2018) (non-precedential decision). Our Supreme Court denied

Sanabria’s petition for allowance of appeal on August 15, 2018.

Commonwealth v. Sanabria, 191 A.3d 740 (Pa. 2018).

____________________________________________

1 All charges filed against Roman were dismissed after a preliminary hearing.

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On August 1, 2019, Sanabria filed a pro se PCRA petition, and the PCRA

court appointed counsel. On November 16, 2020, PCRA counsel filed a motion

to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). Thereafter, the PCRA court issued a Pa.R.A.P. 907

notice of its intent to dismiss Sanabria’s PCRA petition without a hearing.

Sanabria filed a timely response.2 By order entered on January 14, 2021, the

PCRA court dismissed Sanabria’s petition and permitted PCRA counsel to

withdraw. This appeal followed. The PCRA court did not require Pa.R.A.P.

1925 compliance.

Sanabria raises four issues on appeal:

I. Was PCRA counsel ineffective by failing to argue trial

counsel’s ineffectiveness in neglecting to ask the trial

court for a mistrial or curative instruction as to the

misconduct by the prosecutor during her closing

argument and did the PCRA court err in dismissing this

issue?

II. Was PCRA counsel ineffective by failing to argue trial

[counsel’s] ineffectiveness in [neglecting] to introduce

evidence that witnesses were being made to testify

due to pressure from the neighborhood, and the

police, and did the PCRA court err when it dismissed

this claim?

III. Was PCRA counsel ineffective for failing to argue

appellate counsel’s ineffectiveness for[:] (a) not

[ensuring] that [Superior] Court had a complete

transcript of the pleadings below[;] and [] (b) for

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2 The Rule 907 notice does not appear in the certified record.

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arguing identical arguments for the weight and

sufficiency of the evidence arguments?

IV. Did the PCRA court err when it failed to grant a new

trial based on new evidence concerning corruption in

the Philadelphia Police Department and was PCRA

counsel ineffective for failing to litigate this claim?

Sanabria’s Brief at 4 (excess capitalization omitted).

This Court’s standard of review for an order dismissing a PCRA petition

is to ascertain whether the order “is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record.” Commonwealth

v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).

The PCRA court has discretion to dismiss a petition without

a hearing when the court is satisfied that there are no

genuine issues concerning any material fact, the defendant

is not entitled to post-conviction collateral relief, and no

legitimate purpose would be served by further proceedings.

To obtain a reversal of a PCRA court’s decision to dismiss a

petition without a hearing, an appellant must show that he

raised a genuine issue of material fact which, if resolved in

his favor, would have entitled him to relief, or that the court

otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations

omitted).

In each of his issues, Sanabria alleges the ineffective assistance of PCRA

counsel. In Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), our

Supreme Court set new precedent regarding the preservation of such a claim

and held that “a PCRA petitioner may, after a PCRA court denies relief, and

after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s

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ineffectiveness at the first opportunity to do so, even if on appeal.” Bradley,

261 A.3d at 401 (footnote omitted). Here, because Sanabria raised his claims

in his appellate brief, they are properly before us.

In Bradley, the Court also acknowledged that in certain cases when a

layered claim of PCRA counsel’s ineffectiveness is first raised on appeal a

remand may be warranted:

In some instances, the record before the appellate court

will be sufficient to allow for disposition of any newly-raised

ineffectiveness claims. However, in other cases, the

appellate court may need to remand to the PCRA court for

further development of the record and for the PCRA court to

consider such claims as an initial matter. Consistent with

our prior case law, to advance a request for a remand, a

petition would be required to provide more than mere

boilerplate assertions of PCRA counsel’s ineffectiveness;

however, where there are material facts at issue concerning

claims challenging counsel’s stewardship and relief if not

plainly unavailable as a matter of law, the remand should

be afforded.

Bradley, 261 A.3d at 402 (citations and footnote omitted). As more fully

explained below, we need not remand the instant appeal.

To prove PCRA counsel’s ineffectiveness based upon prior counsels’

omission, a PCRA petitioner must provide a layered claim of ineffectiveness.

Id. at 402 n.17 (citing Commonwealth v. Shaw, 247 A.3d 1008 (Pa. 2021)).

Thus, our initial determination is whether Sanabria can establish all three

prongs of the ineffectiveness test as to prior counsel. We address each claim

separately.

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To obtain relief under the PCRA premised on a claim that trial or

appellate counsel was ineffective, a petitioner must establish by a

preponderance of the evidence that counsel’s ineffectiveness so undermined

the truth determining process that no reliable adjudication of guilt or

innocence could have taken place. Commonwealth v. Johnson, 966 A.2d

523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be

constitutionally adequate, and counsel will only be deemed ineffective upon a

sufficient showing by the petitioner.” Id. This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3) the

petitioner was prejudiced by counsel's act or omission. Id. at 533. A failure

to satisfy any prong of the test for ineffectiveness will require rejection of the

claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

In his first issue, Sanabria asserts that trial counsel was ineffective for

failing to move for a mistrial or request a curative instruction based on alleged

prosecutorial misconduct during closing arguments. Sanabria raised a claim

of prosecutorial misconduct in his direct appeal. This Court found the issue to

be waived because, although trial counsel objected, counsel did not move for

a mistrial or a curative instruction. Sanabria, supra, non-precedential

decision at 13. However, even if not waived, we stated that we would adopt

the trial court’s reasoning as to why the prosecutorial misconduct claim lacked

merit. Id. at 13-14.

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Given the above, Sanabria’s first issue fails. In Commonwealth v.

Reed, 971 A.2d 1216, 1220 (Pa. 2009), our Supreme Court held that when

this Court finds an issue waived on appeal, but then determines that the issue

is meritless, the ruling on the merits is a valid holding that constitutes the law

of the case on that issue. Moreover, this Court’s alternative holding on the

merits is binding on this Court when reviewing the issue raised as part of an

ineffectiveness claim: Sanabria is “unable, as a matter of law, to establish

that he suffered actual prejudice” based on trial counsel’s omissions. Reed,

971 A.2d at 1227. Thus, Sanabria cannot establish PCRA counsel’s

ineffectiveness in this regard.

In his second issue, Sanabria claims that trial counsel was ineffective

because he failed to introduce evidence that the Commonwealth witnesses

were testifying due to pressure from the neighborhood and the police.

According to Sanabria, “the victim’s family, friends, and the other individual

previously accused of killing [the victim], [Roman], made threats and posted

information designed to change testimony on Facebook to threaten witnesses

so they would not implicate [Roman] as the shooter and instead prejudice”

him. Sanabria’s Brief at 19-20.

Although Sanabria raises this issue as to several Commonwealth

witnesses, in his Turner/Finley letter, PCRA counsel informed the PCRA court

that Sanabria only identified Ortiz. Turner/Finley Letter, 11/16/20 at 2.

PCRA counsel cannot be faulted for raising a claim regarding the questioning

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of witnesses when Sanabria did not identify them. As to Ortiz, Sanabria

claimed that trial counsel was ineffective “for not asking questions about Luis

[Ortiz] being made to testify.” Id. PCRA counsel opined that this claim lacked

merit because “[t]here was no reason the Commonwealth could not call Luis

Ortiz in their case in chief.” Id. at 4.

The PCRA court also found no merit to Sanabria’s claim:

[Ortiz] was a proper witness to be called by the

Commonwealth in its case-in-chief. Moreover, the

prosecutor herself questioned [Ortiz] regarding the period

of probation he was serving for a theft conviction and while

[Ortiz] acknowledged that his probation could be affected

by a failure to appear in court as a witness, [he] clearly

stated that no promises were ever made to him about

assistance in his own criminal matter. As such Sanabria’s

claim that trial counsel was ineffective for failing to ask

“questions about [Ortiz] being made to testify” lacks merits

and must be dismissed.

PCRA Court Opinion, 1/14/21, at unnumbered 14-15 (footnote omitted).

Our review of the record supports this determination. During the first

day of Sanabria’s jury trial, the prosecutor informed the trial court of certain

text messages that Ortiz had received on his cell phone. N.T., 10/17/21, at

106. Following a lunch recess, the prosecutor revisited the subject and the

following exchange occurred:

[PROSECUTOR]: Your Honor, to bring it to your

attention, I didn’t know if you want to take a break, but I

received information directly from a cell phone of Luis Ortiz

and he had shown officers when he was stopped for this

case text messages that he received from an unknown

phone number. . . .

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The text messages speak for themselves. They

talk directly about court. I asked him did you have any

other court dates coming up when they said when they’re

referencing stay away from that court date and that court,

what did you think that meant. [Ortiz] said this case. And

it says and I won’t read them in its entirety, but it also

references his little brother who as we discussed is a witness

in the case as well. And it says it is telling him to plead the

Fifth, telling him not to go to court. Best option, take . . .

N.T., 10/17/12, at 156-57.

The trial court then discussed with the prosecutor the possibility of

discovering the identity of the person connected to the phone number

associated with the text. The following exchange then occurred:

[THE PROSECUTOR]: We’re going to work on it.

We’re going to ask to introduce it through [Ortiz], who I

intend to call today to talk about who will testify and

describe demeanor.

THE COURT: Well, I see it as very likely that it will

come in one way or another.

[THE PROSECUTOR]: I believe it is probative and

I wanted to bring it to your attention, because we do have

the exact [sic]. I mean, we got it off his phone today, which

we have.

THE COURT: Right. Because I mean he’s made a

statement in here cool, I won’t, you know, if he’s intending

not to say anything. So if that’s what he does, then if it

comes up in that way, But [trial counsel].

[TRIAL COUNSEL]: Well Judge, certainly we

object. There’s no evidence that this has anything to do

with my client. As Your Honor recalls from the witness last

week, this person Nino Cokeboy ended up being a friend of

the victim’s family, and not knowing who’s doing this,

whether it’s someone. The Commonwealth’s theory, of

course, is that it's trying to thwart their prosecution. On the

other hand, it could be someone who’s trying to prejudice

[Sanabria].

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THE COURT: I understand that. But if [Ortiz] gets

on the stand and either takes the Fifth or changes his

testimony, then [the prosecutor] will be able to ask him

about these messages. But [trial counsel], I think that

based on what I know about your case, it could be equally

true that somebody is trying to. Your theory is that it’s the

other person who was the shooter and it could be somebody

working for him that didn’t want [Ortiz] to come in and say

it is the other person. So I think for me, it could easily be

coming from either person. I don’t know. I mean, I agree

with you. But it doesn’t mean that the jury doesn’t get to

hear that [Ortiz] is being told not to say whatever [Ortiz] is

going to say, but that could equally be they’re trying to get

him not to say that it was [Roman] that did the shooting.

[THE PROSECUTOR]: Your Honor, however, the

time frame is subsequent to that preliminary hearing. So

the only court case - -

THE COURT: Yes, but [Roman] hasn’t been given

immunity. And so, [trial counsel] if you wish to make that

implication from it, you may[.]

N.T., 10/17/12, at 157-160.3

When the prosecutor called Ortiz to the stand, he testified consistently

with his police statement—he clearly identified Sanabria as the shooter. See

id. at 269-287. Moreover, when the prosecutor asked Ortiz about how he felt

about coming in to testify, the trial court sustained trial counsel’s objection to

the question. Thus, the text messages were never introduced into evidence.

____________________________________________

3 Trial counsel was referring to the parties’ prior discussion during a hearing

on the Commonwealth’s pre-trial motions involving Facebook messages that

included the police statement of one of the witnesses. See N.T., 10/15/12,

at 3-14.

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Moreover, after considering the testimony from other witnesses for the

Commonwealth, the jury heard evidence that the witnesses’ testimony was

either influenced by the neighborhood and/or the police.

Initially, most of the Commonwealth witnesses testified that they signed

their police statements without reading them. For example, Rivera, who is

Ortiz’s younger brother, testified that, although he originally identified Roman

as the shooter, he later identified Sanabria as the perpetrator because “the

whole [neighbor]hood was talking about this and I was just going with what I

was hearing from the [neighbor]hood[.]” N.T., 10/18/12, at 265.

On cross-examination by trial counsel, Rivera admitted that, on the

night of the shooting, he gave a description of Sanabria as the “other guy”

who was with the shooter. He also admitted that he gave this description

before he “had a chance to hear what the [neighbor]hood was saying[.]” N.T.,

10/18/12, at 271. When he later identified Roman as the shooter to the police.

Rivera testified that the detective circled Sanabria’s photo, and the detective

“persuaded” him to sign it. Id. at 277.

Finally, in his closing, trial counsel argued to the jury that “just about

every witness that got on the stand [for the Commonwealth] told you that the

police or the homicide detectives were manipulating evidence, that they left

out crucial information and in some instances even created evidence.” N.T.,

10/22/12, at 48. Trial counsel suggested, however, that these witnesses

themselves were manipulating the evidence for some unknown reason. Id.

at 49.

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Given the foregoing, the jury heard testimony—on both direct and cross-

examination—from Commonwealth witnesses who stated they were

influenced by the neighborhood and/or the police. Thus, Sanabria’s claim of

trial counsel’s ineffectiveness is refuted by the record. As such, Sanabria’s

claim of PCRA counsel’s ineffectiveness for failing to challenge trial counsel’s

questioning of witnesses, including Ortiz, fails.

In his third issue, Sanabria claims that PCRA counsel was ineffective for

failing to raise appellate counsel’s ineffectiveness in two respects: 1) for

failing to ensure that all of the trial transcripts were transcribed; and 2) for

presenting identical arguments regarding his direct appeal challenges to the

sufficiency and the weight of the evidence. Neither of these claims have merit.

To support his claim regarding the October 19, 2012, transcript,

Sanabria relies on PCRA counsel’s assertion in a footnote to his Turner/Finley

letter that he had to request transcription of that day of testimony. See

Turner/Finley Letter, 11/16/20, at 6 n.1. According to Sanabria, “[t]he

absence of the missing transcript resulted in [Superior] Court not having the

necessary tool to make [its] determination. Sanabria’s Brief at 27. When

affirming Sanabria’s judgment of sentence on direct appeal, however, this

Court did not find the record incomplete, and the complete transcripts appear

in the certified record. Moreover, our review of the testimony from that day

of Sanabria’s jury trial confirms PCRA counsel’s opinion that Sanabria was not

prejudiced by its alleged absence. On October 19, 2012, the medical examiner

testified regarding the cause and manner of the victim’s death, and the

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Commonwealth called several police officers who testified regarding their

interviews with various Commonwealth witnesses. Sanabria does not suggest

how the absence of this testimony would affect the issues he raised on appeal.

As to the presentation of his sufficiency and weight challenges,

appellate counsel based both claims on the evidence presented identifying

Sanabria as the shooter. This Court addressed and rejected Sanabria’s weight

challenge, and Sanabria does not assert how this Court could have found merit

to a sufficiency challenge given that three eyewitnesses, including Roman,

identified him as the shooter, and the Commonwealth introduced a video of

the shooting. Thus, Sanabria’s third claim of PCRA counsel’s ineffectiveness

fails.

In his final claim on appeal, Sanabria asserts that the PCRA court erred

when it failed to grant him a new trial based upon after-discovered evidence

of police corruption, and that PCRA counsel was ineffective for failing to litigate

the claim. The PCRA court found that Sanabria was not entitled to relief. To

review this conclusion, we first note the test we must apply to an after-

discovered evidence claim. When discussing the test in the context of a PCRA

appeal, our Supreme Court recently summarized:

[W]e have viewed this analysis in criminal cases as

comprising four distinct requirements, each of which, if

unproven by the petitioner, is fatal to the request for a new

trial. As stated, the four-part test requires the petitioner to

demonstrate the new evidence: (1) could not have been

obtained prior to the conclusion of trial by the exercise of

reasonable diligence; (2) is not merely corroborative or

cumulative; (3) will not be used solely to impeach the

credibility of a witness; and (4) would likely result in a

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different verdict if a new trial were granted. The test applies

with full force to claims arising under Section 9543(a)(2)(vi)

of the PCRA. In addition, we have held the proposed new

evidence must be producible and admissible.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).

In addition, we note that credibility determinations are an integral part

of determining whether a PCRA petitioner has presented after-discovered

evidence that would entitle him to a new trial. See, e.g., Small, 189 A.3d at

978-79 (remanding for the PCRA court to make relevant credibility

determinations). We have stated, prior to granting a new trial based on after-

discovered evidence, “a court must assess whether the alleged after-

discovered evidence is of such a nature and character that it would likely

compel a different verdict if a new trial is granted.” Commonwealth v.

Padillas, 997 A.2d 356, 365 (Pa. Super. 2010). “In making this

determination, a court should consider the integrity of the alleged after-

discovered evidence, the motive of those offering the evidence, and the overall

strength of the evidence supporting the conviction.” Id.

The PCRA court explained why Sanabria’s after-discovered evidence

claim had no merit:

Here, Sanabria has provided no detail of who was

corrupt, what actions constituted the corruption, nor how

such corruption was related to the instant case. PCRA

counsel represented that, from review of the record, the

“corrupt” detective appeared to be Detective Nordo;

however, in summarizing the trial testimony of each

witness, PCRA counsel concluded that the record did not

support any basis for relief. Detective Watkins’ testimony

provided that he himself had interviewed [Roman] along

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with Detectives Bamberski and Nordo. Detective Nordo was

not the assigned detective on the case and he did not testify

at trial. Given Detective Nordo’s very limited involvement

in the case and the overwhelming evidence of guilty

presented at trial, PCRA counsel concluded that not claim

could be made, and, as such, Sanabria’s [after-discovered

evidence] claim must be dismissed.

PCRA Court Opinion, 1/14/21, at unnumbered 6-7.

Our review of the record supports the PCRA court’s conclusion. Sanabria

proffered no nexus between Detective Nordo’s alleged misconduct and the

facts of his case. See, e.g., Commonwealth v. Foreman, 55 A.3d 532,

537-38 (Pa. Super. 2012) (affirming denial of PCRA after-discovered evidence

claim because police detective’s subsequent misconduct would not lead to a

different verdict; there was no nexus shown between the defendant’s case

and the misconduct that occurred two years later). Thus, Sanabria’s fourth

issue fails.

In sum, we have concluded that a remand is not necessary because we

are able to conclude Sanabria’s claims of PCRA counsel’s ineffectiveness are

meritless based on the record before us. Bradley, supra. Additionally, the

PCRA court properly rejected Sanabria’s after-discovered evidence claim.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/2/2022

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