Com. v. Serrano, L.

J-S44023-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LUIS SERRANO :

:

Appellant : No. 2726 EDA 2022

Appeal from the PCRA Order Entered October 19, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0006365-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LUIS SERRANO :

:

Appellant : No. 2727 EDA 2022

Appeal from the PCRA Order Entered October 19, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0006366-2014

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 14, 2024

Appellant Luis Serrano appeals from the order denying his timely first

petition filed pursuant to the Post Conviction Relief Act1 (PCRA). On appeal,

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

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Appellant raises ineffectiveness claims against trial counsel, direct appeal

counsel, and prior PCRA counsel. We affirm.

The PCRA court set forth the following factual and procedural history:

Nilzon Feliciano Sr. testified that he paid Appellant $400 to install

a transmission in his car. Feliciano subsequently came to believe

the transmission was faulty, and sought a refund for his $400

payment. This dispute festered for several months, culminating

in the incident that forms the basis of the charges against

Appellant.

On February 5, 2014, Nilzon and his son were on the block of

Appellant’s home when they saw Appellant outside and demanded

a refund. Appellant responded by retrieving a firearm from his

home and telling the Felicianos that he was not going to pay them,

so they should leave or he would kill them. The Felicianos decided

to leave, but quickly changed their mind.

As they walked back towards Appellant’s home a few minutes

later, they saw Appellant’s co-defendant and purported son-in-

law, Emmanuel Sanchez, standing on Appellant’s front porch

brandishing an AK-47 rifle. The Felicianos indicated that they

simply wanted their money back. Sanchez responded by firing

the AK-47 at them. The Felicianos ran and managed to escape

without being struck by any bullets.

The Felicianos called the police. They were able to make a positive

identification of Sanchez at his house later that same day, and

Sanchez was arrested. Nilzon subsequently identified Appellant

from a photo array. Appellant absconded but was eventually

arrested.

On May 8, 2014, the Commonwealth sought and obtained

indictments against Appellant via an indicting grand jury for

simple assault, terroristic threats, recklessly endangering another

person, possessing instruments of crime, and three (3) violations

of the Uniform Firearms Act: persons not to possess, use,

manufacture, control, sell or transfer firearms (VUFA § 6105),

firearms not to be carried without a license (VUFA § 6106), and

carrying firearms on public streets or public property in

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Philadelphia (VUFA § 6108).[2] On June 18, 2014, the

Commonwealth filed an information charging Appellant with those

crimes. On January 29, 2015, the Commonwealth filed a motion

to amend the bills of information against Appellant under

Pa.R.Crim.P. 564. [The trial court] denied the Commonwealth’s

motion on January 30, 2015, but later allowed the Commonwealth

more time to reconvene the indicting grand jury and attempt to

secure additional indictments against Appellant.

The grand jury reconvened on February 17, 2015, and indicted

Appellant on two (2) additional charges, attempted murder and

conspiracy to commit murder.[3] The Commonwealth

subsequently filed an information adding those indictments to the

charges filed against Appellant. Appellant challenged the new

indictments through both a Pa.R.Crim.P. 600 motion as well as a

motion to quash. [The trial court] denied both of Appellant’s

motions. Appellant was then tried by a jury alongside his co-

defendant, Emmanuel Sanchez. On May 7, 2015, the jury found

Appellant guilty of VUFA § 6105, VUFA § 6106, VUFA § 6108,

possessing instruments of crime, and conspiracy to commit

murder. On October 3, 2018, after a series of continuances, [the

trial court] sentenced Appellant to an aggregate term of four-and-

a-half (4½) to nine (9) years of confinement, with credit for time

served.

On October 31, 2018, Appellant filed a timely notice of appeal to

the Superior Court of Pennsylvania, challenging [the trial court’s]

decision to allow the Commonwealth to add bills of information

after the initial grand jury proceeding and the sufficiency of the

evidence for his conviction of conspiracy to commit murder. [The

trial court] filed a 1925(a) opinion on August 20, 2019, in which

it concluded that Appellant’s challenges were without merit. On

January 17, 2020, the Superior Court dismissed Appellant’s appeal

for the failure of his counsel, James F. Berardinelli, [Esq.,] to file

an appellate brief on Appellant’s behalf. On January 18, 2020,

Appellant’s counsel filed a motion to reinstate Appellant’s

appellate rights nunc pro tunc. On February 11, 2020, [the trial

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2 18 Pa.C.S. §§ 2701(a), 2706(a), 2705, 907(a), 6105(a), 6106(a), and 6108,

respectively.

3 18 Pa.C.S. §§ 901(a), 2502 and 903(a), 2502, respectively.

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court] granted the motion and reinstated Appellant’s appellate

rights.

On February 17, 2020, Appellant filed a second timely notice of

appeal to the Superior Court of Pennsylvania. [The trial court]

reissued its 1925(a) opinion on March 6, 2020, again concluding

that Appellant’s challenges were without merit. On April 21, 2021,

the Superior Court affirmed Appellant’s judgment of sentence.

[See Commonwealth v. Serrano, 705 EDA 2020, 706 EDA

2020, 2021 WL 1561573 (Pa. Super. filed Apr. 21, 2021)

(unpublished mem.) (Serrano I).] Appellant subsequently filed

a petition for allowance of appeal with the Supreme Court of

Pennsylvania on May 21, 2021, which was denied on October 14,

2021. [See Commonwealth v. Serrano, 264 A.3d 751 (Pa.

2021) (Serrano II). Appellant did not file a petition for writ of

certiorari with the Supreme Court of the United States.]

Appellant filed the instant timely PCRA petition on November 12,

2021, claiming that his convictions or sentence resulted from a

violation of the Pennsylvania and United States Constitutions and

ineffective assistance of counsel. On January 5, 2022, [the PCRA

court] permitted James F. Berardinelli[, Esq.,] to withdraw as

counsel and appointed Matthew Sullivan[, Esq.,] to serve as PCRA

counsel for Appellant. Appellant, through newly appointed PCRA

counsel, filed an amended PCRA petition on May 22, 2022. In his

amended PCRA petition, Appellant claimed his trial counsel was

ineffective for failing to address the lack of a ballistics report in his

closing argument and for failing to investigate witnesses Appellant

told him about.

On June 24, 2022, Appellant’s PCRA counsel filed a motion for

leave to further amend Appellant’s PCRA petition and add an

additional claim that Appellant’s trial counsel was ineffective for

failing to object to the testimony of individuals with the

Philadelphia Police Department, who offered expert opinion

testimony about fired cartridge casings despite not being qualified

as experts. On July 1, 2022, [the PCRA court] granted the motion

and permitted the amendment of Appellant’s PCRA petition. On

August 20, 2022, Appellant’s PCRA counsel filed a memorandum

of law in support of Appellant’s amended PCRA petition detailing

his ineffective assistance of counsel claims and requesting [the

PCRA court] order a new trial.

On September 6, 2022, the Commonwealth filed a letter brief in

response to Appellant’s amended PCRA petition. The

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Commonwealth argued that all of Appellant’s claims were

meritless and requested that [the PCRA court] dismiss Appellant’s

PCRA petition without an evidentiary hearing. On October 19,

2022, [the PCRA court] held a brief hearing [for which] Appellant

was present[]. [The PCRA court] stated that it had reviewed all

filings submitted by Appellant’s PCRA counsel and the

Commonwealth as well as the notes of testimony from Appellant's

jury trial. [The PCRA court] then explained why Appellant was not

due any relief on the three (3) claims presented in his amended

PCRA petition. At the conclusion of the hearing, [the PCRA court]

notified Appellant in open court that his PCRA petition was

dismissed but that he had the right to file an appeal with the

Superior Court of Pennsylvania. [The PCRA court] also issued an

order on October 19, 2022, formally dismissing Appellant’s PCRA

petition.

On October 25, 2022, Appellant filed a timely notice of appeal

from [the PCRA court’s] order dismissing his PCRA petition. On

October 26, 2022, Appellant’s PCRA counsel, Matthew Sullivan,

[Esq.,] filed an application to withdraw as counsel. On the same

date, [the PCRA court] issued an order removing [Attorney]

Sullivan and appointing Daniel A. Alvarez[, Esq.,] as counsel for

Appellant’s PCRA appeal. [The PCRA court] also entered an order

on October 27, 2022, directing Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.

R.A.P. 1925(b). On November 15, 2022, through his new PCRA

appellate counsel, Appellant filed with [the PCRA court] a [Rule]

1925(b) statement of errors complained of on appeal.

PCRA Ct. Op., 3/22/23, at 1-5 (citations and footnotes omitted and formatting

altered). The PCRA court filed a Rule 1925(a) opinion addressing Appellant’s

claims.

On appeal, Appellant raises the following claims for our review:

1. On direct appeal, was appellate counsel ineffective for failing

to adequately brief issues regarding the Commonwealth’s

adding bills of information for conspiracy to commit murder

after representing to the [indicting grand jury], which violated

[] Appellant’s due process rights.[sic] The Superior Court held

in its unpublished memorandum opinion that these arguments

were waived for lack of development in the argument section

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of the brief. Moreover, PCRA counsel was ineffective for not

raising this in an amended petition.[]

2. Was trial counsel ineffective for failing to object to certain

testimony from both Officer John Durando and Detective

Darren Lindsey who improperly provided expert-type

testimony as to the size/caliber of gun that was purportedly

used by co-defendant, based on the size of [fired cartridge

casings (FCCs)] recovered at the scene. Appellant asserts that

there was no reasonable basis for this omission that was

prejudicial to Appellant as he was found guilty of conspiracy to

commit murder, and there is reasonable probability that had

such improper testimony not been allowed at trial, [] Appellant

would have been found not guilty of both counts of conspiracy

to commit murder[.]

Appellant’s Brief at 8 (citations omitted and some formatting altered).

Our review of the denial of PCRA relief is limited to “whether the record

supports the PCRA court’s determination and whether the PCRA court’s

decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4

(Pa. Super. 2014) (citations omitted). “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court’s legal

conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)

(citation omitted); see also Commonwealth v. Davis, 262 A.3d 589, 595

(Pa. Super. 2021) (stating that “[t]his Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings” (citation omitted)).

When reviewing a claim of ineffective assistance of counsel, we are

governed by the following standard:

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[T]o establish a claim of ineffective assistance of counsel, a

defendant must show, by a preponderance of the evidence,

ineffective assistance of counsel which, in the circumstances of

the particular case, so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken

place. The burden is on the defendant to prove all three of the

following prongs: (1) the underlying claim is of arguable merit;

(2) that counsel had no reasonable strategic basis for his or her

action or inaction; and (3) but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.

We have explained that a claim has arguable merit where the

factual averments, if accurate, could establish cause for relief.

Whether the facts rise to the level of arguable merit is a legal

determination.

The test for deciding whether counsel had a reasonable basis for

his action or inaction is whether no competent counsel would have

chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success.

Counsel’s decisions will be considered reasonable if they

effectuated his client’s interests. We do not employ a hindsight

analysis in comparing trial counsel’s actions with other efforts he

may have taken.

Prejudice is established if there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)

(citations omitted and formatting altered).

In his first issue, Appellant argues that direct appeal counsel was

ineffective for failing to adequately develop an argument concerning the

Commonwealth’s amendments to the bills of information prior to trial.

Appellant’s Brief at 18. Specifically, Appellant argues that he was prejudiced

when the Commonwealth was permitted to reconvene the indicting grand jury

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to obtain indictments for attempted murder and conspiracy to commit murder.

Id. at 27 (citing Commonwealth v. Bricker, 882 A.2d 1008 (Pa. Super.

2005)). Appellant further argues that PCRA counsel was also ineffective for

failing to raise this issue in an amended PCRA petition.4 Id.

When a defendant claims that current counsel was ineffective for failing

to challenge prior counsel’s effectiveness, the defendant must present a

layered claim of ineffectiveness. See Commonwealth v. McGill, 832 A.2d

1014, 1022-23 (Pa. 2003).

This Court has explained:

Where the defendant asserts a layered ineffectiveness claim he

must properly argue each prong of the three-prong ineffectiveness

test for each separate attorney.

Layered claims of ineffectiveness are not wholly distinct from the

underlying claims, because proof of the underlying claim is an

essential element of the derivative ineffectiveness claim. In

determining a layered claim of ineffectiveness, the critical inquiry

is whether the first attorney that the defendant asserts was

ineffective did, in fact, render ineffective assistance of counsel. If

that attorney was effective, then subsequent counsel cannot be

deemed ineffective for failing to raise the underlying issue.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012) (citations

omitted and formatting altered), abrogated in part by Bradley, 261 A.3d 381.

However, it is well settled that “counsel cannot be deemed ineffective for

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4 Our Supreme Court has adopted a rule allowing PCRA petitioners to “raise

claims of ineffective PCRA counsel at the first opportunity, even if on appeal.”

Commonwealth v. Bradley, 261 A.3d 381, 405 (Pa. 2021). Therefore,

although Appellant did not raise this claim in his PCRA petition, the issue is

properly before us.

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failing to raise a meritless claim.” Commonwealth v. Treiber, 121 A.3d

435, 445 (Pa. 2015) (citation omitted).

As this Court has previously stated:

The law of the case doctrine refers to a family of rules which

embody the concept that a court involved in the later phases of a

litigated matter should not reopen questions decided by another

judge of that same court or by a higher court in the earlier phases

of the matter. . . . The various rules which make up the law of

the case doctrine serve not only to promote the goal of judicial

economy . . . but also operate (1) to protect the settled

expectations of the parties; (2) to insure uniformity of decisions;

(3) to maintain consistency during the course of a single case; (4)

to effectuate the proper and streamlined administration of justice;

and (5) to bring litigation to an end.

Commonwealth v. Gacobano, 65 A.3d 416, 419-20 (Pa. Super. 2013)

(citations omitted). Under the law of the case doctrine, “when an appellate

court has considered and decided a question submitted to it upon appeal, it

will not, upon a subsequent appeal on another phase of the case, reverse its

previous ruling even [if] convinced it was erroneous.” Id. (citations omitted).

Further, when this Court finds an issue waived on direct appeal but then

alternatively concludes that the issue is meritless, the ruling on the merits is

a valid holding that constitutes the law of the case with respect to that issue.

See Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009).

Here, as noted previously, the PCRA court concluded that Appellant’s

challenge to the bills of information was meritless. See PCRA Ct. Op. at 11.

Although this Court concluded that Appellant failed to adequately develop his

claim on direct appeal, this Court also found “no error in the trial court’s

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analysis or in its conclusion.” Serrano I, 2021 WL 1561573 at *4. This Court

further concluded that, to the extent Appellant relied on Bricker and

Commonwealth v. Williams, 166 A.3d 460 (Pa. Super. 2017) (holding that

“the Commonwealth’s failure [] to request an amendment to the information

until the beginning of trial, and the [trial] court’s failure to rule on this motion

until the end of trial, deprived defense counsel of any realistic opportunity to

prepare or present a defense to this new and different charge during trial”),

both cases were distinguishable from Appellant’s case. Specifically, this Court

explained:

In any event, as the Commonwealth points out, both Bricker and

Williams are readily distinguishable from this case. Bricker

involved a mid-trial amendment to the bills of information which

resulted in the appellant not “hav[ing] knowledge of the alleged

criminal conduct prior to trial.” Bricker, 882 A.2d at 1020-1021.

Similarly, in Williams, the Commonwealth did not move to amend

the information until the beginning of trial and the court did not

rule on the motion until the end of the trial, at which point the

court granted the motion to amend. See Williams, 166 A.3d at

464.

Unlike both Bricker and Williams, the addition of the attempted

murder and conspiracy charges here took place months prior to

trial. As the Commonwealth observes, the indictments were

added by the reconvening grand jury which necessarily occurred

prior to trial. Accordingly, as the trial court explained, Appellant

had “sufficient time to prepare for trial once the new indictments,”

which “were not materially different from those initially presented

to the [indicting grand jury],” were added. Trial Court Opinion,

3/6/20, at 15. The trial court therefore concluded that Appellant

had not suffered unfair prejudice by the addition of the new

charges. Appellant has simply not shown how Bricker or

Williams compels a contrary conclusion or that he is entitled to

any relief on the basis of this claim.

Serrano I, 2021 WL 1561573 at *5 (some citations omitted).

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In its Rule 1925(a) opinion, the PCRA court concluded as follows:

The Superior Court of Pennsylvania stated that it found “no error

in the trial court’s analysis or in its conclusion.” [Serrano I, 2021

WL 1561573 at *4.] Accordingly, while Appellant’s direct appeal

counsel failed to adequately develop his argument regarding the

additional bills of information, the claim itself was without merit.

Appellant’s appellate counsel therefore cannot be found ineffective

for failing to properly raise and develop a meritless claim. Since

Appellant has not shown that his direct appeal appellate counsel

was ineffective in this regard, his claim that his PCRA counsel was

ineffective for not raising the issue in an amended PCRA petition

necessarily also fails. Appellant’s first set of claims is without

merit.

PCRA Ct. Op. at 11.

Following our review, we find no error in the PCRA court’s legal

conclusions. See Lawson, 90 A.3d at 4. Indeed, although this Court

concluded that Appellant waived this issue on direct appeal, the Court

ultimately agreed with the trial court that the underlying claim was meritless

and concluded that it saw “no error in the trial court’s analysis or in its

conclusion.” Serrano I, 2021 WL 1561573 at *4. Under the law of the case

doctrine, we are bound by the Serrano I Court’s legal conclusions. See

Reed, 971 A.2d at 1220; Gacobano, 65 A.3d at 419-20. Therefore, because

the underlying claim is meritless, neither direct appeal counsel nor PCRA

counsel were ineffective for failing to raise this claim. See Treiber, 121 A.3d

at 445; Sandusky, 203 A.3d at 1043. Accordingly, Appellant is not entitled

to relief on this issue.

In his second issue, Appellant contends that trial counsel provided

ineffective assistance due to his failure to object to “expert-type” testimony

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from Philadelphia Police Officer John Durando and Philadelphia Police

Detective Darren Lindsey regarding FCCs. Appellant’s Brief at 35-36.

Appellant concedes that while it was appropriate for these witnesses to testify

regarding what they observed and recovered from the scene, Officer Durando

and Detective Lindsey improperly gave “opinion as to the type of gun that was

involved in producing such ballistics evidence.” Id. at 36 (emphasis omitted).

Appellant further argues that, “[t]his is clearly technical type testimony,

implying to the jury that the FCCs came from the AK-47 that was never

recovered.” Id.

Rule 701 of the Pennsylvania Rules of Evidence provides that a non-

expert witness may provide lay opinion testimony if the opinion is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue; and

(c) not based on scientific, technical, or other specialized

knowledge within the scope of [Pa.R.E.] 702 [(governing

testimony by expert witnesses)].

Pa.R.E. 701.

This Court has held that:

Generally, lay witnesses may express personal opinions related to

their observations on a range of subject areas based on their

personal experiences that are helpful to the factfinder. Lay

testimony has been defined as testimony intended to describe

something that jurors otherwise had not been able to experience

for themselves, by drawing upon the sensory and experiential

observations that the witness made firsthand.

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Commonwealth v. Harper, 230 A.3d 1231, 1242 (Pa. Super. 2020)

(citations omitted and formatting altered); see also Pa.R.E. 602 (stating that

a witness may testify regarding “a matter only if evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the

matter. Evidence to prove personal knowledge may consist of the witness’s

own testimony”).

In the instant case, the PCRA court reached the following conclusion:

The opinions offered during the testimonies of Officer Durando and

Detective Lindsey were proper under Pennsylvania Rule of

Evidence 701. Their descriptions of the fired cartridge casings

found at and recovered from the 3200 block of North Phillip Street

were rationally based on their personal perceptions and provided

to assist the jury in understanding the size of the casings. Officer

Durando described the fired cartridge casings as bigger than the

bullets in his service weapon and identified them as rifle casings

based on his familiarity with rifles. Detective Lindsey only

described them as large in comparison to his own service weapon.

Officer Durando and Detective Lindsey thus only testified to

observations rationally based on their perceptions, which was

informed by their familiarity with firearms, bullets, and fired

cartridge casings from their careers in the Philadelphia Police

Department. Neither Officer Durando nor Detective Lindsey relied

on scientific, technical, or other specialized knowledge within the

scope of Pennsylvania Rule of Evidence 702. Instead, as [the

PCRA court] stated when dismissing Appellant’s PCRA petition,

their testimony was analogous to a lay witness opining “about how

fast a car may be going” based on their experience “driving cars

and observing cars.” Appellant’s claim of ineffective assistance of

counsel is therefore without arguable merit.

PCRA Ct. Op. at 12-13 (citation omitted).

Following our review of the record, we find that the PCRA court’s factual

findings are supported by the record and that its legal conclusions are free

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from error. See Lawson, 90 A.3d at 4. The record supports the trial court’s

conclusion that the opinion testimony from Officer Durando and Detective

Lindsey was based on their own observations related to their personal

experience with firearms. See Harper, 230 A.3d at 1242; see also Pa.R.E.

701. Specifically, Officer Durando stated that he observed “several fired

cartridge casings, very large rifle casings” which were similar in size to a “full

cigarette.”5 N.T. Trial, 5/5/15, at 155, 158. Detective Lindsey testified that

he observed casings from a “large caliber gun,” and that the casings he

observed were larger than the casings from the handgun he carries. N.T.

Trial, 5/6/16, at 22. Therefore, Appellant’s ineffectiveness claim has no

arguable merit. See Sandusky, 203 A.3d at 1043. For these reasons,

Appellant is not entitled to relief, and we affirm the PCRA court’s order denying

his PCRA petition.

Order affirmed. Jurisdiction relinquished.

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5 By comparison, Officer Durando testified that the shell casings for his service

weapon, a .45 caliber Glock, are approximately the size of a cigarette butt.

N.T. Trial, 5/5/15, at 157-58.

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Date: 2/14/2024

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