Com. v. Otero, J.

J-S36019-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JAIME OTERO Appellant No. 2771 EDA 2013 Appeal from the PCRA Order September 24, 2013 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000290-2008 BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.* MEMORANDUM BY JENKINS, J.: FILED AUGUST 06, 2014 1 Specifically, Appellant argues that his trial counsel was ineffective for failing to cross- officer before calling the police following the assault for which Appellant was convicted. After careful review, we affirm. The trial court aptly set forth the facts and procedural history of this case as follows: ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S36019-14 On August 22, 2008, [Appellant] was convicted by a jury of Simple Assault, Terroristic Threats, Possession of a Controlled Substance, and Possession of Drug Paraphernalia. The charges stemmed from an incident which occurred between [Appellant] Springfield Township, where [Appellant] had been temporarily living with Complainant and her young son. [Appellant] and Complainant had an argument in the morning on November 29, 2007, during which [Appellant] used a utility knife in a threatening manner towards Complainant, threatening to cut both her and her son. Complainant called 911 and reported advised the 911 dispatcher that he could be found in her home. [Appellant] answered the door and identified himself as Jaime Otero. Complainant subsequently gave police written consent to search her apartment and [Appellant] was placed in handcuffs for the safety of the officers. A search of the apartment yielded a blue utility knife; a set currency; two cell phones; a chilled and open can of beer; and a black 35mm plastic film container. [Appellant] confirmed all of the items were his with the exception of the film canister. Police opened the plastic film canister and discovered sixteen small individually wrapped packages which appeared to contain a controlled substance. After laboratory examination, it was determined that the substance in the packages was .70 grams of heroin. On August 27, 2008, following his trial, [Appellant] was sentenced to 22-72 months incarceration by Judge Heckler. On September 4, 2008, trial counsel filed a Motion for Post- Sentence Relief on behalf of [Appellant], which was denied by this [c]ourt. On September 5, 2008, [Appellant] filed a pro se appeal to the Superior Court and Motion for New Counsel, without consulting trial counsel and without providing notice to them. On October 7, 2008, a Petition for the Appointment of Office. On October 16, 2008, this [c]ourt denied the Post- Sentence Motion as well as the Petition for Appointment of Private Counsel. On May 4, 2009, [Appellant] filed a Motion for Withdrawal of Appointed Counsel and to Proceed Pro Se and the -2- J-S36019-14 Superior Court ordered this [c]ourt to conduct a hearing on the matter. A hearing was held wherein this [c]ourt found [Appellant] was permitted to proceed pro se. On June 30, 2009, [Appellant] filed a Motion for Setting Bail Pending Appeal with the Superior Court and subsequently, the Superior Court directed the Motion to be decided by this Motion for Bail in an Order dated September 15, 2009. [Appellant] appealed the denial of bail and the Superior Court ultimately affirmed this [c]ourt. On December 16, 2010, our Appeal. On November 14, 2011, [Appellant] filed a pro se PCRA petition. On December 14, 2011, this [c]ourt appointed Attorney Stuart Wilder to represent [Appellant]. On August 13, 2012, a PCRA petition. In an order dated November 8, 2012, this [c]ourt denied [Appellant] relief under the PCRA. Petitioner did not appeal. On August 27, 2013, [Appellant] filed his Second PCRA Petition. On September 26, 2013, this [c]ourt entered an Order permitting [Appellant] to file an appeal of the denial of his first PCRA Petition nunc pro tunc. On September 30, 2013, [Appellant] filed this Notice of Appeal. On October 17, 2013, [Appellant] filed a Concise Statement of Matters Complained of on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). at 1-4 (internal record citations and footnotes omitted). Appellant raises the following question for our review: Did counsel, who failed to present impeachment evidence by parole officer before she called the police, provide ineffective assistance in violation of the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution? -3- J-S36019-14 In reviewing an order denying PCRA relief, our well-settled standard of supported by the evidence of record and is free of legal error. The PCRA nless there is no support for the Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations omitted). This Court follows the Pierce2 test adopted by our Supreme Court to review PCRA claims of ineffective assistance of counsel: PCRA petition, he must prove by a preponderance of the evidence that his conviction or sentence resulted from 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. We have interpreted this provision in the PCRA to mean that the petitioner must show: (1) that his claim of reasonable strategic basis for his action or inaction; and (3) that the error of counsel prejudiced the petitioner-i.e., that there is a reasonable probability that, but for the error of counsel, the outcome of the proceeding would have been different. We presume that counsel is effective, and it is the burden of Appellant to show otherwise. Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal citations and quotations omitted). The petitioner bears the burden of proving all three prongs of this test. Commonwealth v. Meadows, 787 ____________________________________________ 2 Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987). -4- J-S36019-14 A.2d 312, 319- preponderance of the evidence any of the Pierce prongs, the Court need not Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.2010) (citation omitted). -examination of witnesses are matt Commonwealth v. Smith deemed constitutionally effective if he chose a particular course that had Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa.2010) (citation omitted). where he or she has a reasonable ba Commonwealth v. Spotz, 896 A.2d 1191, 1235 (Pa.2006) Moreover, the mere fact that this trial strategy ultimately proved unsuccessful does not Id. chosen by counsel had some reasonable basis, our inquiry ceases and Commonwealth v. Paolello, 665 A.2d 439, 454 (Pa.1995). Appellant argues that trial counsel provided ineffective assistance by failing to cross-examine the complainant about whether she called -5- J-S36019-14 which Appellant was convicted. See -14. This claim lacks merit. At the PCRA hearing, trial counsel explained his tactical decision to There was an issue that Mr. Otero was currently on state probation and parole. Although Mr. Otero says DUI is not a big offense, I look at DUI differently. But most people drive on the road and see[] some idiot who run And I thought why should I l criminal record. All we had to do was admit to the crimen falsi, which is lying to the police officer. Otero, you did this back in 2003, right? That was a long time ago. Yes. You pled guilty because you were guilty, right? Yeah. You paid the full price for that. ... So whether [the complainant] called state parole first jury think, gee, look, she was just trying to call the PO not to get him in real trouble with the police. And you enhance her credibility. decision not to put into fact [sic] he was on state parole. So I he even open alone. ... -6- J-S36019-14 state p edibility one iota after we lost bringing [another witness] in to talk about her bias, prejudice and motive for making the story up. N.T. 8/13/2012, pp. 37-39. The PCRA court summarized this testimony as follows: PCRA hearing. He stated that he made a strategic decision not to question Complainant on this issue because he did not want the jury to be prejudiced by the knowledge that [Appellant] was on parole at the time of the incident. [Trial counsel] took a number of other steps prior to and during the trial to ensure the jury would not be aware of 1925(a) Opinion, p. 5; see also N.T. 8/13/2012, pp. 37-39. The PCRA court then concluded: This is a legitimate trial tactic with a reasonable basis and therefore cannot be grounds to render counsel ineffective. Further, given the likelihood this information would have prejudiced the jury, [Appellant] has no basis for arguing the outcome of his case would have been different. Id. at 5-6. We the record and free of legal error. Accordingly, we affirm. Order affirmed. -7- J-S36019-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/6/2014 -8-