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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
JONATHAN LANDRON :
:
APPELLANT : No. 2154 MDA 2015
Appeal from the PCRA Order November 18, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000559-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 26, 2016
Appellant, Jonathan Landron, appeals from the November 18, 2015
Order, entered in the Berks County Court of Common Pleas, dismissing his
first Petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46, without an evidentiary hearing. After careful review, we affirm.
The PCRA court summarized the facts as follows:
Appellant and Alexander Cruz-Cintron, then residents at
1230 Spring Street in the City of Reading, were looking for
“someone to burn”—that is, someone to “rip off [or] steal
from.” In November 2012, Cruz-Cintron approached his
longtime friend, Danielle Mojica [(“Mojica”)] and suggested
that she could help them “burn” Raymond Hiester. Cruz-
Cintron knew that Hiester and Mojica sometimes smoked
marijuana together and that Heister bought cigarettes for
Mojica, gave her money, and had promised to buy her a
tablet. Mojica at first told Cruz-Cintron and Appellant she
didn’t want to steal from Hiester—she worried that doing
so would jeopardize his willingness to buy her gifts,
including the tablet.
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A few days after Cruz-Cintron first proposed the idea, he
and Appellant repeated the idea of stealing from Hiester.
Mojica again said she was not interested. But on
November 26, 2012, Mojica learned that the plans to
victimize Hiester were already in motion. Appellant and
Cruz-Cintron showed Mojica a black handgun which, she
was told, would only be used to scare Hiester—it “wasn’t to
be fired or anything like that.” Two days later, four
individuals from New York—a Hispanic female known as
“Kay-Kay” and three males, one black and two Hispanic—
arrived in Reading to assist in the operation.
On the morning of November 28, Mojica received a phone
call. On the other end of the line she could hear Appellant,
Cruz-Cintron, and Kay-Kay, who informed her that the plan
was going forward but assured her nothing “serious” was
going to happen. They picked Mojica up and brought her
back to Cruz-Cintron[’s] and Appellant’s residence at 1230
Spring Street in Reading. Cruz-Cintron and Kay-Kay
persuaded Mojica to call Hiester and arrange to go to his
house, while Appellant continued to assure Mojica that
“everything was going to be fine.”
Mojica made contact with Hiester around 11:00 a.m. She
sent him a series of test messages, trying to persuade him
to allow her to come over:
I kept asking him if I could go over to his house, if I
could chill with him. I was trying to smoke. I was
telling him that I was going through it, I was trying
to smoke, that I didn’t want to chill long, you know,
stuff like that.
N.T. 6/11/13, at 88. Hiester said it was not a good time,
but Mojica persisted, and Hiester agreed to allow her to
come to his house.
After Mojica made plans with Hiester, Kay-Kay drove her
to Hiester’s house, located in the 500 block of South 18 th
Street in Reading. Kay-Kay left, and Mojica went inside,
where she and Hiester began smoking marijuana and
talking. After a few minutes, Mojica told Hiester that she
had left her cigarettes in the car she arrived in, and that
she also wanted to smoke more marijuana. Hiester went
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out to purchase some cigarettes and blunt paper from a
corner store nearby. Hiester left through the back door,
and Mojica remained at the house.
As soon as Hiester left, Mojica called Cruz-Cintron to let
him know that Hiester was gone; concurrently, the three
men from New York arrived at Hiester’s home in
Appellant’s car, a gold Mercedes sedan. After entering the
home through the front door, they began looking for items
to steal. They grabbed Mojica, taped her to a chair, and
placed tape over her mouth. Hiester soon returned to his
home, re-entering through the back door. He was met in
the kitchen by a black male who was holding a black-and-
silver handgun. The gunman told Hiester to “get on the
ground” as soon as he walked into the room. Hiester
hesitated, and the gunman approached him, put the gun to
his chest and tried to push him to the ground. Hiester
resisted, and the gunman shot him in the chest.
Hiester did not lose consciousness but attempted to use
the phone in the kitchen to call 9-1-1. Meanwhile, the
gunman resumed digging through the contents of Hiester’s
desk. At that time Hiester also became aware of a second
male in the home, who was descending the stairs from the
second floor while trying to fend off an attack by Hiester’s
Rottweiler. Fearing that the gunman would shoot the
dog—or shoot Hiester again—Hiester called off the dog and
rushed out the back door to seek help.
Hiester found a neighbor and told him he had been shot by
unknown individuals who were attempting to rob him
inside his house. He then lay down in front of the
neighbor’s house to wait for the ambulance. While he was
waiting for the ambulance, he saw the two males run out
the front door of his house, enter a “small silver car,” and
drive away. Police and emergency medical personnel
arrived thereafter, where they found Hiester outside.
Hiester was taken to the hospital to receive treatment for
his gunshot wound. He was released from the hospital
after only six hours. Hiester’s neighbor untied Mojica from
the kitchen chair, and she was questioned throughout the
day by police. Afterwards, Mojica sought out Appellant
and Cruz-Cintron. Cruz-Cintron returned Mojica’s phone,
which had been taken while she was tied up at Hiester’s
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house. Appellant and Cruz-Cintron questioned Mojica
about her statements to the police, but after she assured
them they had not been implicated, they went to dinner
together and then went bowling.
After Hiester was discharged from the hospital, he began
to develop fluid buildup in his chest, which had to be
drained. Surgery was required around the area of the
bullet hole, while a pump drained fluid from the area.
Hiester, a roofing and home improvement contractor,
returned to work after about three weeks of recovery.
Hiester discovered that an iPod Touch, a new Samsung
Galaxy II cell phone, and approximately three ounces of
marijuana had been taken from his home.
Trial Ct. Op., 1/14/16, at 2-4 (some citations omitted).
Following a bench trial held on June 11, 2013, the trial court convicted
Appellant of three counts of Robbery,1 Burglary,2 Theft by Unlawful Taking,3
Criminal Trespass,4 and Conspiracy5 to commit each of the foregoing
offenses.
The trial court sentenced Appellant on September 19, 2013, to an
aggregate sentence of eight to forty years’ imprisonment. Appellant filed a
post-sentence motion seeking to modify his sentence on September 29,
2013. The trial court denied the motion to modify sentence on October 2,
1
18 Pa.C.S. § 3701(a)(1)(ii); 18 Pa.C.S. § 3701(a)(1)(iii); and 18 Pa.C.S. §
3701(a)(1)(iv).
2
18 Pa.C.S. § 3502(a)(1).
3
18 Pa.C.S. § 3921(a).
4
18 Pa.C.S. § 3503(a)(1)(i).
5
18 Pa.C.S. § 903(a)(1).
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2013. Appellant filed a timely appeal from his Judgment of Sentence on
October 17, 2013. This Court affirmed Appellant’s Judgment of Sentence on
September 16, 2014. See Commonwealth v. Landron, NO. 1855 MDA
2013 (Pa. Super. filed September 16, 2014) (unpublished memorandum).
On July 6, 2015, Appellant filed a timely, counseled, first Petition
seeking relief under the PCRA. The PCRA court sent Appellant a Notice
pursuant to Pa.R.Crim.P. 907, indicating that his Petition would be dismissed
as without merit. Appellant filed a “Petition in Response to Dismissal of
PCRA Petition” on September 10, 2015. The PCRA court dismissed
Appellant’s Petition on November 18, 2015, without a hearing. This timely
appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
Appellant claims on appeal that the trial court erred in denying his
PCRA Petition because his trial counsel was ineffective for failing to cross-
examine the Commonwealth’s primary witness, Danielle Mojica, about
whether she had entered into a plea agreement not to be charged as an
accomplice and whether, as a result of such agreement, her testimony was
biased. Appellant’s Brief at 15-16. Appellant alleges that counsel’s failure to
effectively cross-examine Majoica “made it impossible to argue corrupt and
polluted source under the theory of accomplice liability.” Id. at 16.
We review the denial of a PCRA petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
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free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
515 (Pa. Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “The
burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To
satisfy this burden, Appellant must plead and prove by a preponderance of
the evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceedings would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “Failure to establish any prong of
the test will defeat an ineffectiveness claim.” Commonwealth v.
Champney, 65 A.3d 386, 396 (Pa. 2013) (citation omitted).
With respect to Appellant’s allegation of ineffectiveness of trial counsel,
the PCRA court opined as follows:
Appellant’s legal claim has arguable merit because the
pertinent witness, Danielle Mojica, was the only individual
who could connect Appellant to the crime. Additionally, it
is unlikely that trial counsel’s failure to cross-examine
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Mojica about her plea deal was the product of a reasoned
trial strategy. Appellant cannot show, however, that he
was prejudiced by trial counsel’s inaction.
Appellant’s PCRA petition cites Commonwealth v.
Murphy[, 591 A.2d 278 (Pa. 1991)], in which defense
counsel similarly failed to cross-examine a critical witness
about potential bias. [ ] The Supreme Court wrote in
Murphy:
It was incumbent upon defense counsel to bring to
the jury’s attention the possibility that [the witness]
had a motive for testifying against the defendant,
whether based upon a formal agreement with the
prosecution or a subjective belief that she would
receive favorable treatment with regard to her
juvenile probation. If defense counsel was able to
show that [the witness] was biased, it would have, in
all probability, affected the outcome of the
proceeding.
Id. at 280-281.
The instant case is distinguishable from Murphy because
Appellant was convicted following a nonjury trial, rather
than a jury trial. It was abundantly clear to this [c]ourt
that Mojica had acted as an accomplice during this criminal
episode. Accordingly, we are aware that her testimony
was likely incentivized by some agreement with the
Commonwealth. Similarly, since Mojica was an
accomplice, this Court was well aware that she is a
“corrupt and polluted source.”[6] A jury of laypersons may
not be privy to such considerations in the absence of
effective cross-examination by a defense attorney; the
same cannot be said of this [c]ourt. We were the finder of
fact at Appellant’s trial. Accordingly, we can state
unequivocally that our verdict would not have changed if
trial counsel had pursued the disputed line of cross-
6
“It is well established that in any case where an accomplice implicates the
defendant, the judge should tell the jury that the accomplice is a corrupt and
polluted source whose testimony should be viewed with great caution.”
Commonwealth v. Chmiel, 639 A.2d 9, 13 (Pa. 1994) (citation omitted).
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examination. We analyzed Mojica’s testimony with great
caution, and we ultimately found it to be accurate and
reliable.
We also note that Mojica’s credibility was otherwise
impeached by Appellant’s trial counsel and counsel for the
codefendant, Alexander Cruz-Cintron. The cross-
examination emphasized Mojica’s role as an accomplice in
the crime, in addition to the fact that she had initially
given the police a different story.
Trial Ct. Op. at 5-6.
We agree with the trial court that Appellant presented an underlying
claim of arguable merit, and that it is unlikely that trial counsel’s decision
not to cross-examine Mojica about whether she and the Commonwealth had
entered into an agreement favorable to her in exchange for her testimony
was the product of a reasoned trial strategy. However, Appellant has failed
to demonstrate that, but for counsel’s ineffectiveness, the outcome of his
trial would have been different. Because Appellant has failed to establish all
of the prongs of the ineffectiveness test as set forth in Fulton, supra,
Appellant is not entitled to relief. See Champney, 65 A.3d at 396.
Accordingly, we affirm the Order of the PCRA court dismissing Appellant’s
PCRA Petition.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2016
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