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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANDRES MIGUEL MORALES
Appellant No. 595 EDA 2014
Appeal from the PCRA Order January 17, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004512-2007
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 08, 2015
Andres Miguel Morales appeals from the order of the Court of Common
Pleas of Chester County that dismissed his petition brought pursuant to the
Post Conviction Relief Act (PCRA).1 After careful review, we affirm.
This Court previously summarized the underlying facts as follows:
On July 9, 2007, [Morales], Richard Bermudez, Tyrell Jamar
Jones, Carlos Bermudez, and Efrain Molina planned the armed
robbery of Christian Oliveras, who was a drug dealer living at
317 South Adams St., West Chester. Richard Bermudez and
Molina, a frequent customer of Oliveras, orchestrated the crime
while Carlos Bermudez obtained the gun. Molina cased the
home and reported to his co-conspirators. [Morales] and Jones
entered the home with the weapon. Oliveras was in bed with his
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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girlfriend and their baby and, after he resisted the armed
robbers, was shot and killed.
Commonwealth v. Morales, No. 2584 EDA 2010, unpublished
memorandum at 1-2 (Pa. Super. filed November 22, 2011).
On August 22, 2007, Morales appeared before a grand jury
investigating the murder, and testified that he was not in West Chester on
the date of the crime. Approximately one month later, on September 25,
2007, Morales was interviewed by Corporal Scott Whiteside of the West
Chester Police Department. Corporal Whiteside read Morales his Miranda
warnings, and Morales agreed to continue the interview, which was
recorded. Corporal Whiteside told Morales that he was investigating a
homicide and that Morales was under arrest for perjury based on his grand
jury testimony. Consistent with his grand jury testimony, Morales told
Corporal Whiteside that he was not in West Chester on the date of the
murder.
On October 28, 2008, West Chester Police arrested Morales, Jones,
Molina, Richard Bermudez, and Carlos Bermudez for the robbery and murder
of Oliveras.
Molina, Richard Bermudez, and Carlos Bermudez pled guilty to
third degree murder and agreed to testify against [Morales] at
trial. Richard Bermudez related that [Morales] was aware of the
planned robbery and that [Morales] saw the gun before he and
Jones entered Oliveras’ home. Carlos Bermudez indicated that
following the murder, [Morales] was in possession of the weapon
and confessed to being the shooter. Carlos disposed of the gun
in a body of water in Maryland. Molina provided testimony
largely consistent with that of the Bermudezes, although he
could not identify Jones and [Morales].
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Police obtained telephone records of Richard Bermudez’s cell
phone, which indicated that [Morales] and he telephoned each
other five times around the time of the murder. [Morales’] car
was used to transport the co-conspirators to and from the
Oliveras’ residence.
At trial, Jones, whom the trial court determined was not credible,
claimed that Richard Bermudez accompanied him to the Oliveras
home and shot the victim. [Morales], whom the trial court also
determined was not credible, maintained that he was in the
driver’s seat of the car at the time of the robbery and was
completely unaware that the other men were planning the crime.
At trial, a Commonwealth witness identified Richard Bermudez as
the driver of the car.
Morales, supra, at 2-3.
Following a non-jury trial, the court convicted Morales of second-
degree murder, robbery, reckless endangerment, and conspiracy. Under a
separate docket number, the court convicted him of perjury. On April 5,
2010, he was sentenced to life imprisonment.
This Court denied Morales’ direct appeal on November 22, 2011. On
December 21, 2012, Morales filed a timely PCRA petition, and a hearing was
held on September 25, 2013. On January 17, 2014, the court dismissed the
petition, and this appeal followed.
Morales raises the following issues for our review:
1. Whether the PCRA court erred in denying [Morales’] petition
for PCRA relief for ineffective assistance of counsel based on
trial counsel’s failure to file a meritorious motion to suppress
[Morales’] grand jury testimony where [Morales] was denied
counsel.
2. Whether the PCRA court erred in denying [Morales] relief
under the PCRA for ineffective assistance of counsel based on
trial counsel’s decision to consolidate [Morales’] perjury case
with his separate murder case, despite potential prejudice to
[Morales].
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3. Whether the PCRA court erred in denying [Morales’] petition
for PCRA relief for ineffective assistance of counsel based on
trial counsel’s decision to call Tyrell Jones as a defense
witness while recognizing the detriment to [Morales’] defense.
Appellant’s Brief, at 3.2
In reviewing an appeal from the denial of PCRA relief, “our standard of
review is whether the findings of the court are supported by the record and
free of legal error.” Commonwealth v. Martin, 5 A.3d 177, 182 (Pa.
2010) (citations omitted).
To be eligible for relief under the PCRA, Morales must prove by a
preponderance of the evidence that his conviction 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the
defendant must show that the underlying claim had arguable merit, counsel
had no reasonable basis for his or her action, and counsel’s action resulted
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2
Morales also includes in his statement of questions involved that the court
erred in determining that counsel was not ineffective when she advised him
to waive his right to a jury trial. However, Morales has withdrawn the claim.
Appellant’s Brief, at 13.
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in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,
1089 (Pa. Super. 1998).
Morales first argues that trial counsel was ineffective for failing to seek
suppression of his grand jury testimony because he was denied counsel.
Prior to appearing before the grand jury, Morales was given a written
colloquy, in which he answered “no” to the following question: “In the event
that you do not have an attorney, do you still wish to proceed today without
an attorney?” Witness Colloquy, 8/22/07, at 4.
After completing the written colloquy, Morales was brought before the
supervising judge who asked if he had read the colloquy, to which he
responded, “Yes.” Oral Colloquy, 8/22/07, at 2. When the judge asked if he
had any questions, Morales responded, “No.” Id. Morales then agreed to be
sworn in, and stated that he would testify truthfully before the grand jury.
Id. at 3.
At the commencement of the grand jury proceedings, Morales testified
that he reviewed the colloquy and did not have any questions concerning his
rights. N.T. Grand Jury, 8/22/07, at 3. When asked if he was prepared to
testify and tell the truth, he responded, “yes.” Id. at 13. Accordingly, even
if Morales initially did not want to proceed without an attorney, he waived
his right by testifying under oath that he was prepared to proceed.
The PCRA court properly noted that Morales’ claim that counsel was
ineffective for failing to file a motion to suppress is of arguable merit.
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However, it also determined that counsel had a reasonable basis for her
decision not to challenge the grand jury testimony. At the PCRA hearing,
counsel testified:
Mr. Morales told us that at the time that he made the statements
to the grand jury, and at the time that he spoke to Whiteside,
Richard Bermudez, Richard or Carlos Bermudez, one of the two
were still out. So, he was concerned for his safety and the
safety of his family. So, he was going to stick to his story even
though there was ample evidence to show he was in West
Chester.
So, the position that we took was that we had initially requested
to suppress the statements to Corporal Whiteside, but we
decided to withdraw and argue that the lies during the grand
jury and lies to Whiteside were the result of him being afraid of
retaliation and harm coming to him and his family. And in our
opinion, Mr. Morales had to testify in his trial because there were
three other codefendants who were saying that he got out of the
car and he was the shooter. So, he needed to get on the stand
and dispute that.
So, had he testified at his trial and testified inconsistent with the
lies told in the grand jury and lies told to Whiteside, he could
have been confronted with what he said in the grand jury and
what he said to Whiteside.
N.T. PCRA Hearing, 9/25/13, at 31-32.
Trial counsel had a reasonable basis for failing to object to the
admission of grand jury testimony that supported the theory that Morales
consistently lied out of fear of retaliation against himself and his family.
Accordingly, the PCRA court properly denied relief to Morales on this claim.
Morales next asserts that trial counsel was ineffective for requesting
that his perjury case be consolidated with his murder case. He argues that if
the cases had not been joined, evidence of perjury would only have been
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admissible in his murder trial to impeach him if he testified. However, even
if the cases had been tried separately, evidence of the perjury charges would
have been admissible under the prior bad acts exception of Pa.R.E. 404(b).
See also Commonwealth v. Cristina, 391 A.2d 1307 (Pa. 1978) (false
denial of guilt by accused admissible as substantive evidence of
consciousness of guilt).
At the PCRA hearing, trial counsel Amparito Arriaga, Esquire, testified
that consolidating the perjury charge with the homicide charge benefitted
Morales because the Commonwealth would have to prove the perjury
beyond a reasonable doubt. Otherwise, the perjury charge stemming from
Morales’ lying to the grand jury would have been admissible under the lower
standard for establishing prior bad acts or consciousness of guilt. N.T. PCRA
Hearing, 9/25/13, at 66-67.
In addition, co-counsel Elizabeth Plesser-Kelly, Esquire, testified that
by consolidating the cases, Morales avoided going into a murder trial already
having a crimen falsi conviction on his record. Id. at 86. Accordingly, we
agree with the trial court’s conclusion that counsel had a reasonable strategy
to consolidate the cases.
Morales’ final argument is that trial counsel was ineffective for calling
Tyrell Jones as a witness. By way of background, on October 15, 2007,
Jones gave a confession admitting that he and Morales entered the Oliveras
residence on July 8, 2007, and that Morales shot the victim. Jones later
recanted the portion of his statement implicating Morales as the shooter.
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Like Molina and the Bermudezes, Jones was offered an agreement to
plead to third degree murder if he would testify that Morales was the
shooter. While Molina and the Bermudezes took the deal, Jones did not.
Following a trial, Jones was found guilty of first degree murder.
Morales argues that if his counsel had not called Jones to testify about
his recanted confession, Jones’ statement that Morales was the shooter
could not have been introduced by the Commonwealth because it was
hearsay. Accordingly, at trial, the Commonwealth would have had to rely on
the statements of the three co-defendants who were identifying Morales as
the shooter as part of their plea agreements. The testimony of these
witnesses would have been subject to heightened scrutiny because it came
from a corrupt and polluted source. However, because Jones was not
testifying pursuant to a plea agreement, Morales asserts that Jones’ prior
statement implicating Morales “could have been given more credibility.”
Brief of Appellant, at 26.
At trial, Jones testified that on the day of the murder, Richard
Bermudez threatened him with a gun and told him that he had to participate
in a robbery in exchange for money Jones owed him. Bermudez told Jones
to call someone who had a car, and Jones called Morales, and told him that
he needed a ride. Morales went to Sam’s Pizza Island where Jones, the
Bermudezes and Molina got into the car. They did not tell him that they
intended to commit a robbery. Jones further testified that it was Richard
Bermudez, not Morales, who committed the murder, and that Morales, who
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remained in the car, was unaware of the robbery or murder until they were
completed.
Jones testified at trial that most of the information he provided to the
police and his testimony before the grand jury was untruthful. He explained
that he previously lied about Morales’ involvement because Richard
Bermudez threatened him if he did not do so. In support of his testimony he
stated that he rejected an offer to plead guilty to third degree murder
because he would have to testify against Morales and lie by saying that
Morales was the shooter.
At the PCRA hearing, Attorney Arriaga testified regarding her strategy
behind calling Jones as a witness. She noted that Jones was credible
because he refused to accept a favorable plea agreement in exchange for
implicating Morales. Moreover, because three other people involved in the
case were going to testify that Morales was the shooter, it was necessary to
have the only other participant corroborate Morales’ testimony that he did
not get out of the car, did not go into Oliveras’ house, and did not shoot and
kill Oliveras. N.T. PCRA Hearing, 9/25/13, at 22-25.
The Honorable Thomas G. Gavin, who presided over Morales’ trial and
the PCRA hearing, noted:
Jones’ testimony, if believed, exonerated [Morales] of the
shooting and lent credence to why he, [Morales], lied to the
grand jury and police. The fact that [Morales] was found guilty
of felony murder, not murder in the first degree demonstrated
that Jones’ testimony was helpful, not hurtful.
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PCRA Court Opinion, 1/17/14, at 10.
Accordingly, we agree with the PCRA court that counsel had a
reasonable basis for calling Jones as a witness, and therefore he is not
entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2015
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Com. v. Morales, A.
Combined Opinion