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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EDWIN APONTE, :
:
Appellant : No. 1849 EDA 2013
Appeal from the PCRA Order June 3, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0009701-2007
BEFORE: DONOHUE, MUNDY and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 06, 2014
Edwin Aponte1 appeals pro se from the June 3, 2013 order entered by
the Philadelphia County Court of Common Pleas dismissing his petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). We affirm.
The facts of the case, summarized by the PCRA court, are as follows:
On August 17, 2006, [Aponte] shot and killed
Marquis Ward near C and Ruscomb Streets in
Philadelphia. At approximately 3:30 pm, Marquis
Ward, the decedent, was driving his car with his
girlfriend, Sheena Geiger, and saw [Aponte]. The
decedent exited his car and began to converse with
1
Aponte indicates in his brief that his name is Edwin Aponte. We note,
however, that the trial court record and the memorandum disposing of his
direct appeal before this Court both refer to Aponte as Edward Aponte.
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[Aponte]. The confrontation escalated into a fistfight.
They were separated numerous times but continued
to fight. When the fight was finally over, [Aponte]
was bleeding and was clearly the loser. After they
separated a final time, [Aponte] pulled out a gun and
fired multiple times at the decedent. Ms. Geiger
PCRA Court Opinion, 3/21/14, at 2 (record citation omitted).
A jury convicted Aponte of first-degree murder and possessing an
instrument of crime on November 4, 2008.2 The trial court sentenced
Aponte on January 12, 2009 to life in prison without parole for murder and
to a concurrent term of one to two years of incarceration for possessing an
instrument of crime. Following the denial of post-sentence motions, Aponte
appealed his convictions. This Court affirmed his judgment of sentence on
October 26, 2010. The Pennsylvania Supreme Court denied his request for
allowance of appeal on April 13, 2011.
Aponte filed a timely pro se PCRA petition on June 30, 2011, raising
two issues (1) a violation of his Sixth Amendment right to a trial by an
brother made a comment to a juror in the hallway
and (2) ineffective assistance of direct appeal counsel for failing to raise a
Sixth Amendment violation of his right to confrontation on appeal, as the
officer who testified did not prepare the police report testified to. The PCRA
2
18 Pa.C.S.A. §§ 2502(a), 907.
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court appointed counsel, who filed a Turner/Finley
requested to withdraw as counsel on June 28, 2012. The PCRA court filed
3
pursuant On August 6, 2012,
Aponte filed a pro se response, raising two additional issues for the PCRA
(1) ineffective assistance of trial counsel for failing to seek a
curative instruction after the trial court denied his request for a mistrial on
the jury issue listed above and (2) ineffective assistance of trial and direct
appeal counsel for failing to raise a Brady4 claim regarding an agreement
between the Commonwealth and an incarcerated eyewitness who testified
against Aponte at trial. On October 26, 2012, PCRA counsel filed an
amended Turner/Finley
issues raised.
Turner/Finley ers filed by PCRA counsel, and conducting an
petition without a hearing and granted counsel permission to withdraw.
3
The Rule 907 notice does not appear on the docket of the certified record
on appeal, nor is the document itself contained in the record. Aponte does
not contest that the PCRA court issued the Rule 907 notice in this case, and
his response thereto does appear in the certified record. Therefore, the
absence of the Rule 907 notice does not hamper our review.
4
Brady v. Maryland, 373 U.S. 83 (1963).
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Aponte filed a timely pro se notice of appeal, followed by a court-
ordered concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). He raises four issues for our review:
I. Is [Aponte] entitled to a new trial as the result of
[i]neffective [a]ssistance of [c]ounsel for failure to
raise a 6th Amendment [v]iolation when [an] officer
gave testimony to a report he did not prepare which
denied [Aponte] [the] right to confront his accuser?
II. Is [Aponte] entitled to a new trial as the result of
[i]neffective [a]ssistance of [c]ounsel when trial
counsel failed to ask for a curative instruction [to] be
request for a mistrial?
III. Is [Aponte] entitled to a new trial as the result of a
layered claim of [i]neffectiveness when both trial and
appellate counsel failed to raise a Brady [v]iolation
lienecy [sic] for his cooperation?
IV.
counsel filed a defective Finley letter and he did not
list all issues [Aponte] asked him to raise possibly
Our standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Davis,
86 A.3d 883, 887 (Pa. Super. 2014). The P
disturbed unless there is no support for the findings in the certified record.
Id.
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Each of the issues raised by Aponte on appeal present a claim of
ineffective assistance of counsel. It is well-settled law that we presume
counsel provided effective assistance. Commonwealth v. Sepulveda,
55 A.3d 1108, 1117 (Pa. 2012).
To establish ineffectiveness, a petitioner must plead
and prove the underlying claim has arguable merit,
c
actions will not be found to have lacked a reasonable
basis unless the petitioner establishes that an
alternative not chosen by counsel offered a potential
for success substantially greater than the course
actually pursued. Prejudice means that, absent
the outcome of the proceedings would have been
different.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012), appeal
denied, 63 A.3d 773 (Pa.
Commonwealth v. Simpson,
66 A.3d 253, 260 (Pa. 2013) (citation omitted).
As his first issue raised on appeal, Aponte asserts that trial counsel
was ineffective for failing to object, on confrontation grounds, to Officer
-8. Aponte asserts that this claim
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credibility. Id. at 8-9. Aponte further asserts that his claim has merit based
Bullcoming v. New
Mexico, __ U.S. __, 131 S.Ct. 2705 (2011).5 -10.
ows prejudice because as stated
before, [the] officer testified to getting descriptions of two offenders, also to
Id. at 7. He makes
no statement regarding whether counsel had a reasonable basis for failing to
The PCRA court found that this issue was without merit, as Officer
DeNofa testified that although he did not physically prepare the report in
was at the scene and was
Id.
include any statement regarding a lack of
5
In Bullcoming, the United States Supreme Court held that the
Confrontation Clause does not allow the prosecution to introduce a forensic
laboratory report, which included a testimonial certification, created to prove
a fact at a criminal trial, through the testimony of a forensic analyst who did
not perform or observe the test being performed nor signed the certification;
the Confrontation Clause entitles the defendant to have the analyst testify
that made the certification, unless the analyst is unavailable and the
defendant had an opportunity prior to trial to cross-examine that analyst.
Bullcoming, 131 S. Ct. at 2713-17.
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Simpson, 66 A.3d at 260, we also conclude that he failed to establish that
-
-16. It includes general information, including the
location of the alleged crime, the date of its occurrence, and a description of
the incident -
ite t-shirt, dark shorts[.]
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Id. Though Aponte claims that the description of the potential suspects was
prejudicial, the record reflects that Aponte testified at trial and admitted that
he shot the victim, claiming that he did so because he believed he saw the
victim reaching for a gun
waistband and shot him instead. N.T., 11/3/08, at 41-42. As Aponte
testimony regarding a description of the shooter was not prejudicial.
Therefore, counsel cannot be deemed to have provided ineffective assistance
on this basis.
Next, Aponte argues that trial counsel provided ineffective assistance
because he failed to request a curative instruction after the trial court denied
his reques
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-14. The PCRA court
found that because Aponte raised the issue of trial court error for failing to
grant the requested mistrial, this issue had been previously litigated. PCRA
Court Opinion, 3/21/14, at 7. It further found the issue to be meritless
not deny him a
fair and impartial jury. Id.
the denial of his request for a mistrial was previously litigated. Although
Aponte raised on direct appeal the issue of trial court error for failing to
raise distinct Sixth Amendment claims, separate and apart from the
underlying claims of trial court error; thus, prior litigation of a direct review
Commonwealth v. Johnson, 64 A.3d 622, 623 (Pa. 2013) (citation
omitted).
We agree with the PCRA court, however, tha
curative instruction. In determining that the trial court did not err by
denying the request for a mistrial, we stated:
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brother came to light, the trial court individually
polled each juror, including the alternatives, and
ascertained that the statement would not affect their
ability to be a fair juror. N.T. Trial (Jury) Vol. 1,
10/30/08, at 236-
communications [to a jury] have occurred, an
appellate court is limited to a determination of
wh
Commonwealth v. Syre, 518 A.2d
535, 536 (Pa. 1986). Since the record substantiates
and, commensurately, that the alleged prejudicial
event cannot reasonably be said to have deprived
[Aponte] of a fair and impartial jury, we cannot
conclude that the trial court abused its discretion in
refusing to grant a mistrial based on the comment.
Commonwealth v. Aponte, 1865 EDA 2009, 12 (Pa. Super. October 26,
prejudicial pursuant to the law of the case doctrine. This doctrine, defined
upon a second appeal, an
appellate court may not alter the resolution of a legal question previously
Commonwealth v. Starr,
664 A.2d 1326, 1331 (Pa. 1995).
As this Court previously concluded that the statement made to the
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Therefore, no relief is due.
In his third issue on appeal, Aponte raises a layered ineffectiveness
claim, asserting that both trial and appellate counsel were ineffective for
failing to raise a Brady
inform Aponte that one of its testifying eyewitnesses, Emmanuel Ramos
14-17. The PCRA court found this issue to be meritless because the record
testimony, only that the Commonwealth would make his cooperation known
to the judge hearing his case. PCRA Court Opinion, 3/21/14, at 8.
Furthermore, the PCRA court states that Aponte does not allege, and the
record does not support a finding, that trial counsel was unaware of the
Id.
In Brady v. Maryland, the United States Supreme Court held that
favorable to an accused
upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
Brady, 373 U.S. at 87. This holding has been adopted by our
Supreme Court, which set forth the standards for establishing a Brady
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suppressed by the state, either willfully or inadvertently; (2) the evidence at
issue is favorable to the defendant; and (3) the evidence was material,
Commonwealth v. McGill,
574 Pa. 574, 583, 832 A.2d 1014, 1019 (2003) (citations omitted).
The record reflects that when the Commonwealth called Ramos to
testify, the first questions the prosecutor asked him surrounded his
incarceration in Montgomery County for pending criminal charges and the
case at bar known to
the judge hearing his pending case. N.T., 10/29/08, at 192-93. Ramos
agreed and testified that there were no deals or promises made in return for
his testimony. Id. at 193. At the conclusion of his direct testimony, counsel
for Aponte cross-examined Ramos extensively about his incarceration in
Id. at
216, 218-19. Trial counsel further questioned Ramos about an outstanding
warrant for his arrest in Philadelphia County, a recent probation violation,
and his criminal history, including an adjudication of delinquency in 2000.
Id. at 216-18, 220-21.
Thus, as the PCRA court found, the record does not support a finding
that the Commonwealth failed to disclose to trial counsel that Ramos was
Even if the Commonwealth withheld that information prior to trial, we cannot
say that any prejudice ensued, as counsel thoroughly and extensively cross-
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examined Ramos on this issue, bringing it before the jury for its
consideration. In short, there is no support in the record that a Brady
nor appellate counsel can be found to have rendered ineffective assistance
on this basis.
In his final issue, Aponte contends that PCRA counsel was ineffective
PCRA court
found that PCRA counsel complied with the dictates of Finley and that this
issue is meritless. PCRA Court Opinion, 3/21/14, at 8-9.
Counsel seeking to withdraw from PCRA representation must: (1) file a
extent of his/her review, (2) list
each issue the petitioner wishes to have reviewed in said letter, and (3)
explain why these issues are meritless, whereupon the PCRA court will
conduct an independent review of the record and decide whether the petition
is meritless. Turner, 518 Pa. at 494-95, 544 A.2d at 928; Finley, 550 A.2d
at 215. Counsel is also required to send to the petitioner: (1) a copy of the
(3) a statement advising petitioner of the right to proceed pro se or by new
counsel. See Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super.
2011).
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Our review of the record reveals no indication that the issue included
in his brief on appeal that trial counsel was ineffective for withdrawing a
motion to suppress an out-of-court identification by Sheena Geiger was
ever presented to PCRA counsel by Aponte. The record reflects that Aponte
authored a letter to PCRA counsel requesting that he raise the Brady claim,
which counsel addressed in his second Turner/Finley
See
Notice, 8/26/12, at 1-2. Aponte does not state in his brief on appeal when,
if ever, he requested that PCRA counsel raise this issue. See
at 17-20.
The record reveals that counsel complied with these requirements and
addressed each issue that Aponte raised. As there is no indication in the
record that Aponte requested that counsel address this issue, we have no
Turner/Finley
that he provided ineffective assistance.
Furthermore, Aponte never raised the underlying issue of trial
axiomatic that issues not presented before the PCRA court are waived and
cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Thus, the
underlying issue is not s
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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