J-S22043-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAYSON MELENDEZ-BONILLA, :
:
Appellant : No. 1047 MDA 2015
Appeal from the PCRA Order May 29, 2015
in the Court of Common Pleas of Berks County,
Criminal Division, at No(s): CP-06-CR-0003537-2011
BEFORE: MUNDY, DUBOW, and STRASSBURGER,* J.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 13, 2016
Jayson Melendez-Bonilla (Appellant) appeals from the May 29, 2015
order which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On February 2, 2012, Appellant was sentenced to an aggregate term
of 80 to 160 years of imprisonment after a jury convicted him for numerous
crimes in connection with Appellant’s firing shots at four law enforcement
officers in Reading.1 In 2013, this Court affirmed Appellant’s judgment of
sentence, and our Supreme Court denied his petition for allowance of
appeal. Commonwealth v. Melendez-Bonilla, 69 A.3d 1298 (Pa. Super.
1
Specifically, Appellant opened fire on officers Tina Falstitch, Aaron Andre,
Matt Hafer, and Mark Hackney, and the jury found Appellant guilty of
attempted homicide; firearms not to be carried without a license; and four
counts each of assault of law enforcement officer, aggravated assault, and
recklessly endangering another person.
*Retired Senior Judge assigned to the Superior Court.
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2013) (unpublished memorandum), appeal denied, 79 A.3d 1097 (Pa.
2013).
On January 31, 2014, Appellant pro se timely filed a PCRA petition
raising six claims of ineffective assistance of counsel and one constitutional
violation. PCRA counsel was appointed shortly thereafter. On December 2,
2014, after a change of counsel and several requests for extensions of time,
counsel filed a request to withdraw and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
December 9, 2014, the PCRA court entered an order granting counsel leave
to withdraw and filed notice of its intent to dismiss Appellant’s petition
without a hearing pursuant to Pa.R.Crim.P. 907. Appellant was granted two
extensions of time for filing objections to the dismissal. Rather than filing
objections, Appellant filed an amended PCRA petition raising five new claims
of ineffective assistance of counsel. By order of May 29, 2015, the PCRA
court dismissed Appellant’s original and amended petitions. This timely-filed
appeal followed.
Appellant states ten2 questions on appeal, which we paraphrase as
follows, reordered for ease of disposition:
2
In his statement of questions presented, Appellant also separately lists his
contention that he “has substantiated the various claims of ineffective
assistance of counsel.” Appellant’s Brief at x. However, in the
corresponding portion of the argument section of his brief, Appellant does
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1. Whether Appellant’s constitutional rights were
violated by his not having “a fair cross section of jurors.”
2. Whether trial counsel was ineffective in stipulating to
the admission of the report of the Commonwealth’s expert
witness.
3. Whether trial counsel’s assistance was ineffective
because he failed to challenge the qualifications of the
Commonwealth’s evidence technician.
4. Whether trial counsel provided ineffective assistance
by proffering an unqualified expert.
5. Whether counsel was ineffective for not challenging
the legality of his sentence.
6. Whether trial counsel was ineffective in failing to
object to prosecutorial misconduct.
7. Whether trial counsel’s performance was rendered
constitutionally deficient by his failure to object timely to the
prosecutor’s statement of personal beliefs.
8. Whether trial counsel was ineffective in failing to
move for a mistrial based upon the failure of one of the victims
to testify.
9. Whether trial counsel provided ineffective assistance
by neglecting to call character witnesses.
10. Whether trial counsel was ineffective in declining to
request a mistrial when it was discovered that one of the jurors
had a cell phone in the jury box.
See Appellant’s Brief at ix-x.3
not raise any additional questions for this Court, but merely discusses the
legal requirements for such claims generally. Id. at 12-13.
3
For each claim of ineffective assistance of trial counsel, Appellant also
claims that his appellate counsel was ineffective in failing to raise trial
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“Our standard of review of a trial court order granting or denying relief
under the PCRA calls upon us to determine ‘whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.’”
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
Appellant’s first claim is that the lack of Hispanic jurors in his jury pool
violated his rights under the federal Constitution’s Equal Protection Clause
and Sixth Amendment, as well as those under Article 1, § 9 of the
Pennsylvania Constitution.4 Appellant’s Brief at 8-10. Appellant does not
contend that counsel was ineffective for failing to object to the lack of
potential jurors who share Appellant’s ethnicity; rather, he makes a direct
challenge to the composition of his jury pool.
Appellant could have raised this claim on direct appeal. See, e.g.,
Commonwealth v. Estes, 851 A.2d 933 (Pa. Super. 2004) (resolving on
direct appeal claim that Allegheny County systematically excluded non-
caucasian individuals from jury pools). By failing to do so, he waived it.
See, e.g., Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013)
counsel’s ineffectiveness on Appellant’s direct appeal. Under
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), such claims are
reserved for collateral review and may not be raised on direct appeal absent
special circumstances not present in this case. Thus, direct appeal counsel
was not ineffective in failing to challenge trial counsel’s effectiveness.
4
“In all criminal prosecutions the accused hath a right to … a speedy public
trial by an impartial jury of the vicinage….” Pa. Const. Art. I, § 9.
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(“An issue is waived if appellant could have raised it but failed to do so
before trial, at trial, ... on appeal or in a prior state postconviction
proceeding.” (internal quotation marks omitted)).
Appellant’s issues two through five were not raised in his PCRA
petition, but rather were included only in the “amendment and addendum”
Appellant filed without leave of court after the PCRA court issued its notice of
intent to dismiss. “Our procedural Rules contemplate that amendments to
pending PCRA petitions are to be ‘freely allowed to achieve substantial
justice.’ Pa.R.Crim.P. 905(A). … However… the Rule explicitly states that
amendment is permitted only by direction or leave of the PCRA court.”
Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012). “[I]t is clear from
the rule’s text that leave to amend must be sought and obtained, and hence,
amendments are not self-authorizing. Thus, for example, a petitioner may
not simply amend a pending petition with a supplemental pleading.”
Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014).
Here, Appellant simply filed an amendment to his pending petition
without seeking or receiving leave of court. Thus, questions two, three,
four, and five5 stated above, which were raised in the amended petition but
5
Appellant’s fifth issue relates to counsel’s failure to challenge the legality of
his sentence. To the extent that Appellant’s claim is an unwaivable one, we
note that it is meritless.
Appellant contends that mandatory minimum sentences both for
aggravated assault of a police officer (20 years under 42 Pa.C.S.
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not in his original petition, are waived. See id. at 731 (“Therefore, since the
present claim was not raised in Appellant's PCRA petition, and no request
was made to amend the petition to include it, it is waived.”).
Appellant’s next two issues, numbers six and seven above, are listed
in his brief among his questions presented but are not even mentioned, let
alone developed, anywhere in his argument section. Accordingly, they are
waived. See, e.g., Commonwealth v. Rush, 959 A.2d 945, 951 (Pa.
Super. 2008) (finding issue waived where the appellant failed “to present
developed arguments and, in so doing, apply the relevant law to the facts of
§ 9719.1(a)) and for third-strike offenders (25 years pursuant to 42 Pa.C.S.
§ 9714(a)(2)) were applicable. Appellant’s Brief at 6. The trial court
sentenced Appellant to four consecutive terms of 20 to 40 years of
imprisonment for the assaults on the four officers, and did not apply any
third-strike mandatory. Appellant contends that he should have been
sentenced only to one term of 25 years of imprisonment under 42 Pa.C.S.
§ 9716. Appellant’s Brief at 7.
Section 9716 provides as follows: “Where two or more sections requiring
mandatory minimum sentences are applicable, the court shall be bound by
that section requiring the greater penalty.” We have held that § 9716
speaks to situations in which more than one mandatory minimum sentence
is applicable to a single crime, not to those in which a defendant commits
multiple crimes that each carry one or more mandatory minimum sentences.
See Commonwealth v. McLaughlin, 574 A.2d 610, 617 (Pa. Super. 1990)
(affirming imposition of four mandatory minimum sentences to convictions
stemming from McLaughlin’s firing of a shotgun in a bar, killing one person
and injuring three others). Because the trial court did not impose both 20-
year and 25-year mandatory minimum sentences for each assault, § 9716 is
inapplicable.
Moreover, this Court affirmed Appellant’s sentence on direct appeal
following a review of its discretionary aspects. Melendez-Bonilla, 69 A.3d
1298 (unpublished memorandum at 11-18). Therefore, Appellant’s sentence
not only is legal, it is the product of a valid exercise of sentencing discretion.
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the case, persuade us there were errors, and convince us relief is due
because of those errors”).
Appellant’s three remaining claims of ineffective assistance of trial
counsel were raised in his original petition and argued in his brief. We
review them under the following standards.
[I]n order to obtain relief based on [an ineffective
assistance of counsel] claim, a petitioner must
establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s
actions or failure to act; and (3) petitioner suffered
prejudice as a result of counsel’s error such that
there is a reasonable probability that the result of
the proceeding would have been different absent
such error.
Trial counsel is presumed to be effective, and a PCRA petitioner
bears the burden of pleading and proving each of the three
factors by a preponderance of the evidence.
Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015)
(internal citations omitted).
Appellant’s first preserved and developed ineffectiveness claim is that
trial counsel was ineffective in not moving for a mistrial based upon the
failure of one of the victims to testify. Appellant argues that his rights under
the Sixth Amendment’s Confrontation Clause were violated because he was
sentenced for crimes against Officer Hackney although Officer Hackney did
not testify at trial. Appellant’s Brief at 7-8.
The Confrontation Clause provides that in all criminal
prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him. … At its most basic
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level, the Sixth Amendment’s Confrontation Clause seeks to
ensure that the trial is fair and reliable by preserving an
accused’s right to cross-examine and confront the witnesses
against him.
Commonwealth v. Collins, 888 A.2d 564, 575 (Pa. 2005) (internal
quotation marks and citations omitted; emphasis added).
Officer Hackney was not called as a witness against Appellant.
Therefore, the Confrontation Clause gave him no right to confront and cross-
examine Officer Hackney. Counsel cannot be found ineffective for failing to
raise a claim of no arguable merit.6 Commonwealth v. Ligons, 971 A.2d
1125, 1146 (Pa. 2009) (“As the substantive [] claim lacks arguable merit,
trial counsel cannot be deemed ineffective for failing to raise it….”).
Appellant next claims that trial counsel was ineffective in not calling
character witnesses to testify on Appellant’s behalf. Appellant’s Brief at 10.
To establish ineffectiveness for failure to call a witness,
Appellant must establish that: (1) the witness existed; (2) the
witness was available; (3) counsel was informed of the existence
of the witness or counsel should otherwise have known him; (4)
the witness was prepared to cooperate and testify for Appellant
at trial; and (5) the absence of the testimony prejudiced
Appellant so as to deny him a fair trial. A defendant must
establish prejudice by demonstrating that he was denied a fair
trial because of the absence of the testimony of the proposed
witness.
6
On direct appeal, counsel did challenge the sufficiency of the evidence to
sustain Appellant’s convictions as to all four officers, including Officer
Hackney. This Court determined that the evidence was sufficient, based
upon the testimony of the witnesses who were offered, and whom Appellant
had the opportunity to confront and cross-examine. Melendez-Bonilla, 69
A.3d 1298 (unpublished memorandum at 7-11).
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Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003) (quoting
Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002)).
Evidence of a person’s character is generally inadmissible as proof that
the person acted consistent with that character on any particular occasion.
Pa.R.E. 404(a)(1). However, a criminal defendant may offer evidence of a
pertinent character trait as substantive evidence that he did not commit a
charged crime. Pa.R.E. 404(a)(2)(A); Commonwealth v. Padden, 50 A.2d
722, 725 (Pa. Super. 1947). “[O]ur Supreme Court has interpreted the term
‘pertinent’ to refer to a character trait that is relevant to the crime charged
against the accused.” Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa.
Super. 2010). The permissible means of establishing a pertinent character
trait are as follows:
Rule 405. Methods of Proving Character
(a) By Reputation. When evidence of a person’s character or
character trait is admissible, it may be proved by testimony
about the person’s reputation. Testimony about the witness’s
opinion as to the character or character trait of the person is not
admissible.
(1) On cross-examination of the character witness, the
court may allow an inquiry into relevant specific instances
of the person’s conduct probative of the character trait in
question.
(2) In a criminal case, on cross-examination of a character
witness, inquiry into allegations of other criminal conduct
by the defendant, not resulting in conviction, is not
permissible.
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(b) By Specific Instances of Conduct. Specific instances of
conduct are not admissible to prove character or a trait of
character, except:
(1) In a civil case, when a person’s character or a
character trait is an essential element of a claim or
defense, character may be proved by specific instances of
conduct.
(2) In a criminal case, when character or a character trait
of an alleged victim is admissible under Pa.R.E.
404(a)(2)(B) the defendant may prove the character or
character trait by specific instances of conduct.
Pa.R.E. 405.
Here, Appellant attached to his PCRA petition three affidavits which
each contain the following language: “I was willing to testify as to
[Appellant’s] good nature, but was never called. I stand ready to testify, if
this is so needed in any further proceedings.” Affidavit of Karen Bridgeman;
Affidavit of Monique Melendez; Affidavit of Katherine Melendez. None of the
affidavits indicates that the witness was willing and able to testify as to
Appellant’s reputation in the community for any character trait. Moreover,
Appellant fails to explain how having a “good nature” satisfies the pertinent-
trait requirement of Pa.R.E. 404(a)(2)(A) as to any of the crimes with which
he was charged. As such, we are unconvinced that Appellant was denied a
fair trial by counsel’s failure to call these three witnesses, and the PCRA
court did not err in dismissing the claim.
Finally, Appellant argues that trial counsel was ineffective in failing to
move for a mistrial because one of the jurors had a cell phone in the jury
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box. Appellant’s Brief at 11. Appellant states that a juror’s mobile phone
rang in the jury box during the trial, resulting in a staff person’s taking the
phone from the juror and giving it back at the end of the day. Id. at 12.
The only authority Appellant cites in support of this argument are
irrelevant Pennsylvania Code provisions that govern note-taking by jurors
and the types of materials jurors may take with them for deliberations. Id.
at 11-12 (citing 234 Pa. Code. §§ 644 and 646). These regulations do not
contradict the PCRA court’s observation that “[j]urors are not prohibited
from possessing cell phones.” PCRA Court Opinion, 8/5/2015, at 7.
Appellant offers much speculation about things the juror could have
been doing with a mobile phone, but does not allege and offer to prove that
anything improper actually was done. Appellant baldly states that he was
denied a fair trial, but gives no explanation how the ringing phone prejudiced
him. Appellant has failed to convince us that the PCRA court erred in
dismissing this claim. See Commonwealth v. Hughes, 865 A.2d 761, 785
(Pa. 2004) (“Given the presumption of effectiveness that attaches to prior
counsel’s actions, and as it is Appellant’s burden to demonstrate eligibility
for relief under the PCRA, mere conjecture does not establish an entitlement
to relief.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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