Com. v. Santiago, M.

J-S45016-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MARCELINO SANTIAGO Appellant No. 564 EDA 2013 Appeal from the PCRA Order of January 14, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0006429-2011 BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.* MEMORANDUM BY WECHT, J.: FILED AUGUST 20, 2014 denying his petition for relief under the Post- 42 Pa.C.S. §§ 9541-46. We affirm. The PCRA court aptly set forth the facts and procedural history of this case as follows: On April 5, 2011[,] at around 3:20 a.m., Philadelphia Police Officer Ken Fazio, along with his partner Officer Rabinovitch, e of [sic] 3000 Kensington Avenue, in Philadelphia, Pennsylvania. Fazio observed a black male lying on the ground with the [appellant], Marcelino Santiago on top of him. N.T. 2/15/2012, at 10. [Santiago] was holding this black male, Paris Riley, down with one hand and repeatedly thrusting a knife he held in his ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S45016-14 -10. At this time, Officers Fazio and Rabinovitch exited their vehicle and ordered [Santiago] to drop his knife. N.T. 2/15/2012, at 11. [Santiago] then looked in the direction of the [o]fficers and started to walk in the opposite direction. Id. The [o]fficers eventually forced [Santiago] to the ground and found the knife underneath [Santiago]. Id. Officer Fazio testified that the knife was about nine inches in length with a four[-]inch blade. Id. paperwork person. N.T. 2/15/2012, at 13. Mr. Riley suffered a cut to his finger but refused medical treatment. N.T. 2/15/2012, at 12. [Santiago] was arrested and charged with aggravated assault,[1] robbery,[2] theft by unlawful taking,[3] receiving stolen property,[4] possession of an instrument of crime,[5] simple assault,[6] and recklessly endangering another person.[7] -2 (citations modified). On February 15, 2012, Santiago waived his right to a jury trial after an on-the-record colloquy with the trial court. N.T., 2/15/2012, at 3-7. After a brief bench trial, the trial court found Santiago guilty of all the charges filed against him. N.T., 2/15/2012, at 25. On July 10, 2012, the trial court sentenced Santiago to eighteen to thirty- ____________________________________________ 1 18 Pa.C.S. § 2702(a). 2 18 Pa.C.S. § 3701(a)(1)(ii). 3 18 Pa.C.S. § 3921(a). 4 18 Pa.C.S. § 3925(a). 5 18 Pa.C.S. § 907(a). 6 18 Pa.C.S. § 2701(a). 7 18 Pa.C.S. § 2705. -2- J-S45016-14 aggravated assault conviction, and a concurrent eighteen to thirty-six , at 16-18. The Id. at 19. Order of Sentence, July 10, 2012. Santiago did not file any post-sentence motions, nor did he file a direct appeal. On August 30, 2012, Santiago filed a timely counseled PCRA petition in which he asserted that his trial counsel, Joseph Kelly, was ineffective for failing to inform Santiago of his right to testify at his own trial. PCRA Petition, 8/30/2012, at ¶7 (unpaginated). The PCRA court held a PCRA Petition. N.T., 1/14/2013 at 5. On January 30, 2013, Santiago filed a timely notice of appeal. On March 12, 2013, Santiago filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).8 In his Rule 1925(b) statement, self-defense claim and did not advise Santiago about his right to testify in court. Concise Statement, 3/12/2013, at ¶1 (unpaginated). ____________________________________________ 8 It does not appear from the certified record that the PCRA court specifically ordered a 1925(b) statement. -3- J-S45016-14 The PCRA court issued its Pa.R.A.P. 1925(a) opinion on November 15, 2013. The PCRA court first stated that Santiago could not prove that his counsel was ineffective because it was not unreasonable for counsel to conclude that keeping Santiago off of the stand was an effective strategy. P.C.O. at 4-5. Furthermore, the PCRA court stated that Santiago could not prove ineff events incredible, and because Santiago would not have been able to establish a credible self- testimony. P.C.O. at 5-6. Santiago raises the following issue for our review. Was trial counsel ineffective in failing to inform [Santiago] of his right to testify and allow [Santiago] to testify on his own behalf to assert a claim of self[-]defense? Brief of Santiago at 4. neffective counsel claim, we note that -conviction supported by the evidence of record and whether it is free of le Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received ineffective assistance of counsel, our Supreme Court has stated: [A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or -4- J-S45016-14 which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner. To obtain was deficient and that the deficiency prejudiced the petitioner. A there is a reasonable probability th unprofessional errors, the result of the proceeding would have posits that: (1) the underlying legal issue has arguable merit; reasonable basis; and omission. Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations omitted). any particular order of priority; instead, if a claim fails under any necessary element of the [ineffectiveness] test, the court may proceed to that element Commonwealth v. Lambert, 797 A.2d 232, 243 n.9 (Pa. 2001). supported by the record, are binding upon this Court. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). After a review of the transcript of S that Santiago has not met his burden of demonstrating that Attorney Kelly was ineffective as his counsel. Santiago presently argues that Attorney Kelly never informed Santiago of his right to testify, and that if he had, Santiago -5- J-S45016-14 would have raised a self-defense claim. In considering an ineffectiveness claim based upon the decision to testify, our Supreme Court has stated: ultimately to be made by the defendant after full consultation with counsel. Commonwealth v. Uderra, 706 A.2d 334 (1998); Commonwealth v. Bazabe, 590 A.2d 1298 (Pa. Super. 1991); Commonwealth v. Fowler, 523 A.2d 784 (Pa. Super. 1987). In order to sustain a claim that counsel was ineffective for failing to advise the appellant of his rights in this regard, the appellant must demonstrate either that counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf. Id. Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations t to other than what he had written in the motion for post-conviction relief. N.T. 1/14/2013, at 4. However, even if Santiago were to prove that Attorney Kelly never discussed Sa basis for not doing so, Santiago is not entitled to relief because we discover no actual PCRA prejudice that befell Santiago in the event that he could establish the first two prongs of the ineffective assistance of counsel test. As previously noted, Santiago waived his right to a jury and appeared before Judge Sean F. Kennedy for a bench trial. N.T., 2/15/2012, at 3-7. Judge nd -6- J-S45016-14 his account of the facts. Although Santiago claimed that he would attempt to establish a self-defense narrative if called to the stand, Judge Kennedy stated in his opinion that he would not have credited this sequence of events. Judge Kennedy pointed to the fact that he found Officer Fazio was inconsistent. P.C.O. at 6. Furthermore, Judge Kennedy noted independent evidence that would tend to implicate Santiago, such as cuts on Id. Because Judge Kennedy would not have credited suffered no prejudice. Because Santiago cannot satisfy this element of the ineffective assistance of counsel claim, his petition fails. Lambert, 797 A.2d at 243 n.9 (Pa. 2001). Order affirmed. Fitzgerald, J. concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/20/2014 -7-