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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JULIO A. BONILLA
Appellant No. 2130 MDA 2015
Appeal from the PCRA Order November 18, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000680-2010
BEFORE: GANTMAN, P.J., BOWES, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2016
Julio A. Bonilla appeals from the November 18, 2015 order denying his
PCRA petition following an evidentiary hearing. After thorough review, we
affirm.
Appellant was charged with first-degree murder and two counts of
aggravated assault arising out of a street fight on Willow Street in Lebanon
City on March 25, 2010. Appellant threatened one victim with a knife and
fatally stabbed Kenny Echevarria multiple times with that weapon.
Immediately after the stabbing, he fled to Vineland, New Jersey, and was
arrested there on March 26, 2010.
* Retired Senior Judge assigned to the Superior Court.
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On December 1, 2010, Appellant entered a negotiated guilty plea to
the charges and was sentenced to twenty to forty years in prison.
Thereafter, Appellant filed a PCRA petition. He successfully challenged his
plea, and his sentence was vacated. Attorney Erin Zimmerer was appointed
to represent him at a trial. Counsel filed numerous pre-trial motions on
Appellant’s behalf. Following a four-day trial, where thirty-one witnesses
testified, the jury found Appellant guilty of all charges and the court
sentenced him to life imprisonment.1
Appellant filed post-trial motions, which were denied. He then filed a
direct appeal to this Court but was denied relief. Commonwealth v.
Bonilla, 2013 Pa. Super. Unpub. LEXIS 1826 (Pa.Super. 2013). The
Supreme Court denied allowance of appeal. Commonwealth v. Bonilla, 86
A.3d 231 (Pa. 2014). Appellant timely filed the instant PCRA petition raising
multiple claims of trial counsel’s ineffectiveness. The court appointed
counsel and held an evidentiary hearing on October 29, 2015. Appellant
testified on his own behalf and, in addition, he presented the testimony of
three witnesses he characterized as material, but who were not called to
testify at trial: Emmanuel Ortega, Carmen Irizarry, and Julio Bonilla, Sr. On
November 18, 2015, the PCRA court denied relief.
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1
Appellant received a concurrent five to ten year sentence of imprisonment
on the assault convictions.
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Appellant timely filed the within appeal and complied with the PCRA
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court authored its Pa.R.A.P. 1925(a)
opinion, and the matter is ripe for our review. Appellant presents four
questions:
A. Whether the trial court erred in not finding Appellant’s trial
counsel ineffective for failing to identify and call material
witnesses who could have provided exculpatory testimony at
trial, specifically Emmanuel Ortega, Carmen Irizarry, and Julio
Bonilla, Sr.
B. Whether the trial court erred in not finding Appellant’s trial
counsel ineffective for failing to obtain and play the 911 call
[Appellant] made after the murder at trial.
....
[C.] Whether the trial court erred in not finding Appellant’s trial
counsel ineffective for failing to seek suppression of a knife
and photographs of a [sic] various knives, and failed to
object to their admission during trial.
....
[D.] Whether the trial court erred in its decision denying
Appellant’s Petition for Post-Conviction Relief.
Appellant’s brief at 4.2
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2
Appellant withdrew two issues from our consideration that were contained
in his Pa.R.A.P. 1925(b) statement and listed in his Statement of Questions.
See Appellant’s brief at 32, 35.
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When we review the denial of post-conviction relief, we are “limited to
examining whether the evidence of record supports the court's
determination and whether its decision is free of legal error."
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Our
"review is limited to the findings of the PCRA court and the evidence of
record” and we view the latter “in the light most favorable to the prevailing
party at the PCRA level.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa.Super. 2012). While we will not disturb the factual findings of the PCRA
court unless they are unsupported, we afford no deference to its legal
conclusions. “Where the issue is a question of law, our standard of review is
de novo and our scope of review is plenary.” Commonwealth v. Henkel,
90 A.3d 16, 20 (Pa.Super. 2014).
In order to prevail, the petitioner must demonstrate: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable basis
for the act or omission in question; and (3) he suffered prejudice as a result
of counsel's deficient performance. Commonwealth v. Steele, 961 A.2d
786, 796-97 (Pa. 2008); Commonwealth v. Stewart, 84 A.3d 701, 706
(Pa.Super. 2013) (en banc). "A claim of ineffectiveness will be denied if the
petitioner's evidence fails to satisfy any one of these prongs."
Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013).
The third prong, the prejudice aspect, involves a showing by a
defendant that but for the act or omission in question, “there is a reasonable
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probability that the outcome of the proceedings would have been different.”
Id. at 427; Steele, supra at 360. A "reasonable probability" is "a
probability sufficient to undermine confidence in the outcome."
Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super. 2006).
With regard to the second prong, "Trial counsel . . . is presumed to
have acted effectively and in his client's best interests[.]” Commonwealth
v. Hancharik, 633 A.2d 1074, 1079 (Pa. 1993). In determining whether
counsel had a reasonable basis for the course charted, "[t]he test is not
whether other alternatives were more reasonable, employing a hindsight
evaluation of the record,” Commonwealth v. Hawkins, 894 A.2d 716, 730
(Pa. 2006), "but whether no competent counsel would have chosen that
particular course of action, or the alternative not selected offered a greater
chance of success.” Commonwealth v. Colavita, 993 A.2d 874 (Pa.
2010). This test is an objective one, and counsel is effective if his decision
had any reasonable basis. Hawkins, supra.
Regarding a claim that counsel was ineffective in failing to investigate
and call witnesses, a petitioner must demonstrate:
(1)the witness existed; (2) the witness was available; (3) trial
counsel was informed of the existence of the witness or should
have known of the witness’ existence; (4) the witness was
prepared to cooperate and would have testified on appellant’s
behalf; and (5) the absence of the testimony prejudiced
appellant.
Commonwealth v. Miller, 868 A.2d 578, 581-82 (Pa.Super. 2005).
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Appellant alleges that trial counsel was ineffective for failing to
reasonably investigate and make an informed decision whether to call three
witnesses, whom Appellant claims could have provided material and
exculpatory testimony. Appellant maintains that, although he told counsel
about Emmanuel Ortega3 prior to trial, counsel failed to investigate, contact,
or interview him, and she had no reasonable strategic basis not to do so.
Appellant argues that Mr. Ortega’s testimony was beneficial under
Commonwealth v. Perry, 644 A.2d 705 (Pa. 1994), as it supported his
claim of self-defense and may have resulted in a lesser degree of homicide.
Mr. Ortega further testified at the PCRA hearing that he lived with
Appellant at the time of the fight. He was present the day before the fight
when the victim threatened to kill Appellant and his family. N.T., 12/16/15,
at 19. Mr. Ortega further testified that, although he did not witness the
fight, Appellant entered his car on Willow Street immediately after the fight.
Mr. Ortega described Appellant as shocked and scared, and Appellant asked
Mr. Ortega to take him to a friend’s house because he was being threatened.
Id. at 12. Along the way, Appellant directed Mr. Ortega to stop at a pizza
place so that Appellant could place a telephone call from a payphone.
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3
Mr. Ortega was known as Emmanuel Rodriguez-Arroyo, Emmanuel Orta-
Rodriguez, and Emmanuel Arroyo. Trial counsel’s notes did not contain any
mention of an Emmanuel and counsel had no recollection of discussing an
Emmanuel. N.T., 10/29/15, at 92.
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Following that call, Mr. Ortega dropped off Appellant at a friend’s home,
picked up Appellant’s family from their Willow Street residence, retrieved
Appellant, and transported all of them to Appellant’s brother’s house in New
Jersey. During that trip, they discussed Appellant turning himself in to
police after he and his family were safe. Mr. Ortega maintained that he did
not see a knife in Appellant’s possession.
Mr. Ortega further testified that he was not contacted by trial counsel,
but he would have been available to provide testimony at trial. He denied
any familial relationship with Appellant and represented that he did not
remain in contact with him after the murder. On cross-examination, Mr.
Ortega admitted that Appellant is his sister’s unofficial husband and the
father of her children. Id. at 22. Despite the fact that Appellant told police
that he threw the knife from the car window into a river on the way to New
Jersey, Mr. Ortega stated he did not see Appellant throw anything out of the
window and denied that he stopped the vehicle for that purpose. Upon his
return from New Jersey, Mr. Ortega retrieved his clothing and went to
Rochester.
The PCRA court did not find Mr. Ortega credible or his testimony
exculpatory. Furthermore, it found Mr. Ortega’s account of the trip to New
Jersey inconsistent with Appellant’s statement to police that he threw the
knife into the river during that trip. In addition, the court credited Attorney
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Zimmerer’s testimony that she did not investigate Mr. Ortega because she
was not apprised of his existence.
Appellant maintains that counsel knew of Mr. Ortega, but failed to
locate him. Furthermore, he contends that Mr. Ortega’s testimony was not
internally inconsistent and did not contradict Appellant’s testimony.
Appellant argues that Mr. Ortega’ s testimony would have been exculpatory
or mitigating as it would have supported his claim that he acted in self-
defense and fled in fear.
We cannot disturb the court’s credibility determination. Furthermore,
we agree with the PCRA court that the witness’s testimony had little
evidentiary value as the jury heard from Detective Walton that Appellant told
him he fled the state in fear of retaliation. N.T. Trial, 4/11/12, at 76.
Additionally, Appellant’s sister Amarylis and his wife Sacha testified at trial
that there were issues between Appellant and the victim in the days leading
up to the fight and murder, and that the victim had threatened to kill
Appellant. Id. at 128. Both of the women related that the victim and others
attacked Appellant on the date in question. Id. at 111, 114. Appellant’s
wife testified that, after the stabbing, Appellant was nervous, upset, and
crying. Id. at 130. Thus, Mr. Ortega’s testimony, to the limited extent it
was probative of the issue of self-defense, was cumulative of other
testimony. Finally, the PCRA court credited Attorney Zimmerer’s testimony
that she was not apprised of Mr. Ortega. No relief is due.
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Appellant alleges next that trial counsel was ineffective in failing to
communicate with Carmen Irizarry. Appellant points to Ms. Irizarry’s
cooperation with his subpoena for the PCRA hearing as evidence that, had
the witness been subpoenaed for trial, she would have cooperated and
offered consistent testimony. Furthermore, he contends that Ms. Irizarry’s
testimony, if believed, would have bolstered his self-defense argument and,
as in Perry, supra, would have supported a conviction of a lesser degree of
homicide.
Ms. Irizarry was sitting with Norma Ortiz and Marie on Norma’s front
porch near the location of the fight.4 She heard but did not see the fight.
She testified that she recognized Appellant’s voice crying for help three
times and she detected fear in his voice. Id. at 40. Ms. Irizarry originally
testified that no one contacted her about being a witness at trial. She
subsequently changed her testimony and admitted that she did speak to
someone regarding the events that night. She also added that she received
a call from an attorney who left a message. Id. at 41-42. When asked
whether she would have been available to testify at the April 2012 trial, Ms.
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4
Norma Ortiz testified on behalf of the defense at trial. Ms. Ortiz stated that
she saw four or five guys hitting the defendant with their fists while he was
on the ground and she heard screaming. N.T. Trial, 4/11/12, at 62, 71. On
cross-examination, she confirmed that Carmen Irizarry was a good friend of
Appellant, and that an investigator working on behalf of the defense
interviewed all three women at Ms. Irizarry’s home regarding their
observations of the fight. Id. at 64, 71.
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Irizarry answered in the negative as she had undergone an operation at the
time. She ultimately acknowledged that, had she been subpoenaed by
Appellant, she would not have appeared due to her surgery. She
remembered having her daughter notify the court that she could not appear
at trial, although she did not recollect receiving any notice to appear.
Trial counsel Zimmerer testified that the defense spoke with Ms.
Irizarry, but the woman was not willing or able to testify at trial as she had
just undergone surgery. Id. at 94. Moreover, according to counsel, the
witness told her that she did not remember anything from that night, and
her daughter called counsel to reinforce that representation. Id.
Based upon the testimony of Attorney Zimmerer and Ms. Irizarry, the
PCRA court concluded the witness was not willing and able to testify at the
time of the trial. Furthermore, the court found Ms. Irizarry to be well-
meaning but confused, and that her “marginally relevant” testimony would
not have had any impact on the trial. PCRA Court Opinion, 11/18/15, at 9.
Again, we find ample support in the record for the trial court’s findings, and
Appellant is not entitled to relief on this basis.
Julio Bonilla, Sr., Appellant’s father, was in Puerto Rico at the time of
the murder. He testified that his son telephoned him from New Jersey,
reported what had happened, and that he was “crying, screaming.” N.T.,
11/29/15, at 47. His son related that “a situation had occurred . . . and he
wanted to do everything correct and that they were trying to kill him and his
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children and that he was really scared.” Id. Appellant did not mention to
his father that someone had been killed. Mr. Bonilla advised his son to get
an attorney and turn himself over to police. He testified further that he
provided counsel with Mr. Ortega’s name and contact information. Id. at
52. Mr. Bonilla was sequestered in the hallway during trial, ready and willing
to testify.
Counsel had a vague recollection that Mr. Bonilla was available and
willing to testify, and that he was sequestered, but she did not call him to
provide testimony as his story was inconsequential and had the potential to
conflict with the testimony of another witness. The PCRA court agreed with
counsel that, even assuming Mr. Bonilla’s testimony would have been
admitted over a hearsay objection, it was of little or no probative value, and
thus, counsel was not ineffective in opting not to call him.
We agree that Appellant failed to demonstrate the prejudice required
to satisfy the third prong of the ineffectiveness test. Furthermore, the
record supports a finding that trial counsel made a reasonable strategic
decision not to call Mr. Bonilla as a witness. We find no basis for finding
counsel ineffective.
Next, Appellant contends that counsel was ineffective in failing to
obtain and play for the jury the 911 call that he made after the murder.
Appellant argues that his sister, his wife, his mother and father were in the
courthouse and could have identified his voice. Furthermore, he submits
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that, due to the timing of the call, just moments after the event, together
with the stress and fear in his voice, the jury would have overlooked the fact
that he did not identify himself or his victim. Appellant analogizes such
evidence to that of character witnesses in Commonwealth v. Weiss, 606
A.2d 439, 443 (Pa. 1992).
Mr. Bonilla and trial counsel both confirmed that counsel was in
possession of the 911 tape prior to trial. N.T., 11/29/15, at 71. In addition
to potential authentication issues, counsel testified that she made a strategic
decision not to play the tape because she believed Appellant’s refusal to
identify himself or the victim, together with the fact that he hung up on the
911 operator, was incriminating. Id. Counsel believed the best use of the
evidence was letting the jury know that Appellant voluntarily made the 911
call without having to play it, a strategy counsel deemed the “best of both
worlds.” PCRA Court Opinion, 11/18/15, at 12. The PCRA court saw no
basis to impugn counsel’s strategic decision, and furthermore, characterized
it as “totally correct” and expressed its agreement that playing the 911 call
would have been harmful. Id.
We concur that counsel’s decision not to play the 911 call for the jury
was a reasonable one, a strategy other competent counsel may have
employed in similar circumstances. Furthermore, Appellant cannot
demonstrate any prejudice as the jury was apprised that he made the call
and reported the stabbing, which was the positive aspect of the evidence,
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without the downside of proof of his refusal to identify himself. This claim is
meritless.
Next Appellant alleges that the trial court erred in not finding counsel
ineffective for failing to seek suppression of a knife and photographs of
knives, and failing to object to their admission at trial. Appellant argues the
admission of photographs of multiple knives in his home was prejudicial, as
it “allowed the inference to be presented to the jury that Appellant was
prepared for somebody to come after him, which significantly impairs his
self-defense argument.” Appellant’s brief at 34. Moreover, he claims that
counsel had no reasonable basis for failing to object.
Counsel testified that she did not believe the photographs of knives,
many of them common kitchen knives, were probative or prejudicial as the
evidence established that the knives had been tested and ruled out as the
murder weapon. Furthermore, the jury was aware that the knife that was
introduced into evidence was not the murder weapon. The PCRA court
concluded that any prejudice from their admission was outweighed by the
fact that the exhibits merely confirmed that “everyone has multiple knives in
their houses.” PCRA Court Opinion, 11/18/15, at 13. We agree, and find no
prejudice.
Appellant’s final claim is that the PCRA court erred in denying his PCRA
petition. In support of this contention, Appellant argues that he was
prejudiced by the cumulative effect of counsel’s various failings. He cites
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Commonwealth v. Mason, 130 A.3d 601, 674 (Pa. 2015), in support of his
contention that prejudice should be premised upon the cumulative effect of
trial counsel’s multiple deficiencies. However, the law is to the contrary.
Herein, as in Mason, where all of Appellant's ineffectiveness claims were
found meritless, “no cumulative prejudicial effect could have attained.” Id.
(quoting Commonwealth v. Thomas, 44 A.3d 12, 25 (Pa. 2012)).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2016
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