J-S07044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PEDRO E. CABRERA, :
:
Appellant : No. 970 MDA 2016
Appeal from the PCRA Order May 26, 2016
in the Court of Common Pleas of Dauphin County,
Criminal Division, No(s): CP-22-CR-0000916-2010
BEFORE: BOWES, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 23, 2017
Pedro E. Cabrera (“Cabrera”) appeals from the Order denying his
Petition filed pursuant to the Post Conviction Relief Act.1 We affirm.
In its Opinion, the PCRA court set forth the factual and procedural
background of this case, which we adopt for the purpose of this appeal. See
PCRA Court Opinion, 5/26/16, at 1-4.
On May 26, 2016, the PCRA court entered an Order denying Cabrera’s
Petition. Cabrera filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Cabrera raises the following issue for our review:
Whether [Cabrera] was deprived of his constitutional right to
effective assistance of counsel when his trial attorney failed to
properly investigate exculpatory information[,] and failed to call
an exculpatory witness[,] in violation of [Cabrera’s] right to
effective counsel under the 6th Amendment to the United States
1
See 42 Pa.C.S.A. §§ 9541-9546.
J-S07044-17
Constitution[,] as well as Article I[,] Section 9 of the
Pennsylvania Constitution?
Brief for Appellant at 4 (capitalization omitted).
Cabrera contends that trial counsel was ineffective because he “failed
to exhaust all reasonable means to contact or interview” Victoria Rolon
(“Rolon”), who, Cabrera asserts, possessed exculpatory information that
would have corroborated Cabrera’s testimony at trial. Id. at 9-10. Cabrera
claims that there was no reasonable basis for trial counsel’s defensive
strategy, which “was based entirely on the testimony of [Cabrera.]” Id. at
11. Cabrera argues that there is a reasonable probability that the outcome
of his trial would have been different if trial counsel had “tracked down”
Rolon. Id. Cabrera points to his trial testimony that he had no knowledge
of the presence of guns or drug paraphernalia in the home, and contends
that Rolon’s testimony would have supported this testimony, and led to his
acquittal. Id. at 12.
In reviewing the denial of a PCRA Petition, we examine whether the
PCRA court’s determination “is supported by the record and free of legal
error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)
(citations omitted).
In its Opinion, the PCRA court addressed Cabrera’s issue, set forth the
relevant law, and determined that the issue lacks merit. See PCRA Court
Opinion, 5/26/16, at 5-8. We agree with the reasoning of the PCRA court,
-2-
J-S07044-17
which is supported by the record and free of legal error, and affirm on this
basis. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2017
-3-
Circulated 03/03/2017 03:34 PM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
v.
NO: 0916-CR-2010
PEDRO E. CABRERA : PCRA
MEMORANDUM ORDER
Presently before this Court is Petitioner Pedro E. Cabrera's (Petitioner/Defendant)
Amended Petition for Relief Pursuant to the Post Conviction Relief Act, 42 Pa. C.S.A.
9541 et. seq. A PCRA Hearing was convened on February 19, 2016.
PROCEDURAL HISTORY
On August 7, 2009, Defendant was arrested and charged with one count of
Possession With Intent to Manufacture or Deliver a Controlled Substance,1 one count of
Persons Not to Possess a Firearm,2 and one count of Unlawful Possession of Drug
Paraphernalia.3 Defendant appeared for a jury trial on June 18 and 19, 2012. A jury
rendered a verdict of not guilty on the charge of Possession With Intent to Deliver, and
guilty on the charges of Person Not to Possess a Firearm and Unlawful Possession of
Drug Paraphernalia.
On November 5, 2012, Defendant was sentenced on the firearms charge to a term
of incarceration of not less than sixty (60) months nor more than one hundred twenty
1
35 P.S. §780w113(a)(30).
2 18 Pa.C.S. §6105(a)(1).
3
35 P.S. §780w113(a)(32).
1
(120) months, along with costs of prosecution and a fine of $500. On the drug
paraphernalia charge, he was sentenced to a term of incarceration of not less than three
(3) months nor more than six (6) months to run concurrent with count two, along with
costs of prosecution and a fine of $25. On November 27, 2012, Defendant filed a notice
of appeal with the Superior Court and on March 10, 2014, the Superior Court affirmed
Defendant's judgment of sentence.
On May 5, 2014, Defendant filed a prose Motion for Post Conviction Collateral
Relief4 and on May 9, 2014, JonathanW. Crisp, Esquire was appointed as PCRA counsel.
Attorney Crisp filed an Amended Petition for Relief Pursuant to the Post Conviction Relief
Act, 42 Pa. C.S.A. 9541 et. seq (Amended PCRA Petition). Defendant's Amended PCRA
Petition alleges he is eligible for relief because his trial counsel was ineffective.
Specifically, Defendant challenges his trial counsel's decision not to call his girlfriend, Ms.
Vanessa Rolon (Rolon), as a witness for his defense. A PCRA evidentiary hearing was
held on February 19, 2016.
On direct examination at the PCRA Hearing, Defendant testified that prior to trial,
he met two times with his trial counsel, Bryan McQuillan, in the holding cells of the
Dauphin County Courthouse.5 Defendant testified that he told Mr. McQuillan that he
wanted to call Vanessa Rolon to testify on his behalf at trial. N.T. PCRA 3. However,
4 Defendant's pro se Motion alleges that he Is ellglble for relief because: I) a violation of the Constitution
of this Commonwealth or the Constitution or laws of the United States which, In the circumstances of the
particular case, so undermined the truth-determining process that no reliable adjudication of guilty or
Innocence could have taken place, II)Ineffectlve assistance of counsel, and III) the unavallablllty at the
time of trlal of exculpatory evidence that has subsequently become available and would have changed
the outcome of the trial If It had been Introduced. However, the only facts In support of Defendant's
alleged errors Is that counsel was Ineffective.
5 Transcript of proceedings, PCRA Hearing, February 19, 2016, page 3 (hereinafter "N.T. PCRA __ '')
2
during the actual trial, Defendant did not say anything to his trial counsel about calling
Ms. Rolon as a witness. N.T. PCRA 4. Finally, Defendant testified that he was able to
give Mr. McQuillan the number to contact Ms. Rolon. Id.
Defendant's next witness at the PCRA Hearing was Ms. Rolon. Ms. Rolon testified
that she has been with the Defendant for 12 years. N.T. PCRA 8. Ms. Rolon testified that
on the day of the incident a Chrissy (Ms. Roland could not recall Chrissy's last name)
came to the house carrying a box. N.T. PCRA 9. Ms. Rolon than proceeded to send
Chrissy to the store and while Chrissy was away at the store, Ms. Rolon carried the box
upstairs (without looking in the box - as Ms. Roland testified that she had no knowledge
of what was in the box). N.T. PCRA 10.
On cross-examination, Ms. Rolon testified that she was in a relationship with the
Defendant in the months leading up to trial. that she was aware that the Defendant was
in prison. and that there were some letters that were written between herself and the
Defendant. N.T. PCRA 11-12. Ms. Rolon testified that she had no knowledge as to whom
the gun belonged. N.T. PCRA 13. Finally. on cross-examination. Ms. Rolon testified that
she is still in a relationship with the Defendant and "[i]f they would have told me to come
to court a long time ago. this would have been done and over with." N.T. PCRA 14.
The following exchange took place between Ms. Rolon and the Court:
THE COURT: Ma'am, all right, so this happened back in August of 2009,
is that right, when the police came to the house?
THE WI1NESS: Yes.
THE COURT: Is that right?
THE WITNESS: Yes.
THE COURT: And then this case came to trial in June of2012; is that right?
THE WITNESS: Yes.
3
THE COURT: And all that time you were still in a relationship with Mr.
Cabrera?
THE WITNESS; Yes.
THE COURT: Okay. And is it your testimony that during this entire time,
even though you had a relationship with him, you never knew when his case was
going to go to trial?
THE WITNESS: No.
THE COURT: He didn't want you. there to support him?
THE WITNESS: I don't know
The Defendant's final witness at the PCRA Hearing was trial counsel, Bryan
McQuillan. Mr. McQuillan, in contradiction to Defendant's testimony, testified that he
met with the Defendant several times at his office before he was incarcerated". Id. 18. Mr.
McQuillan stated that he was aware of a Vanessa Rolon but was unable to call her (or Ms.
Cintron) as witnesses. Id. at 19. Mr. McQuillan indicated that he had a number for Ms.
Rolon but it was crossed out which indicates that the number was no good. Id. The
Commonwealth proceeded to introduce Mr. McQuillan's case file as Conunonwealth's
Exhibit 1. Id at 21. Here, Mr. McQuillan made notes of witnesses that were favorable or
pertinent to his case. Mr. McQuillan, however, did not have any notes on Ms. Rolon. Id.
at 22. Mr. McQuillan testified that "[ijfMs. Rolon was brought to my attention as a witness
that was favorable or had information to share that was favorable and truthful, [he] would
have noticed it and [he] would have certainly called her if [hejcould have." Id. Mr.
McQui.llan went on to testify that the Defendant told the detective that everything in the
house was the Defendant's. Id at 23. The Defendant, while Detective Cornick, Ms.
Cintron, and Ms. Rolon were all sitting down together, admitted that everything In
the house was his. Id. at 24.
6Mr. McQulllan further testified that the Defendant would come to his office to make payments towards
his case. Mr. McQulllan stated that this happened at least six times. N.T. PCRA 20.
4
DISCUSSION
"The law assumes that counsel was effective, and the burden is on the appellant
to prove otherwise." Commonwealth v. McS/oy, 751 A.2d 666, 228 (Pa.Super.2000). ''To
plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the
underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable
basis; and (3) actual prejudice resulted from counsel's act or failure to act."
Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa.Super.2013) (en bane), appeal denied,
93 A.3d 463 (Pa.2014) (citation omitted).
"Generally, counsel's assistance is deemed constitutionally effective if he chose a
particular course of conduct that had some reasonable basis designed to effectuate his
client's interests." Commcmwealth v. Spotz, 84 A.2d 294, 311 (Pa.201_4) (citation
omitted). "Where matters of strategy and tactics are concerned, [a] finding that a chosen
strategy lacked a reasonable basis is not warranted unless it can be concluded that an
alternative not chosen offered a potential for success substantially greater than the course
actually pursued." Id. at 311-12 (citation and quotes omitted). A failure to satisfy any
prong of the test will require rejection of the claim. See id. at 311.
[l]n the particular context of the alleged failure to call witnesses, counsel will not
be deemed ineffective unless the PCRA petitioner demonstrates (1) the witness existed;
(2) the witness was available; (3) counsel knew of, or should have known of the existence
of the witness; (4) the witness was willing to testify for the defense; and (5) the absence
5
of the testimony was so prejudicial to petitioner to have denied him or her a fair trial.
Commonwealth v. Miner, 44 A.3d 648, 687 (Pa.Super. 2012) (citation omitted).
The Commonwealth established at trial that the Defendant told Detective Cornick
that he had a firearm and heroin in his closet in his bedroom.7 Officer Baird (one of the
Commonwealth's witnesses) further testified that the Defendant told him that he had a
firearm in his bedroom and even indicated that the gun was located on the top shelf. N.T.
Jury Trial 42-42. Upon receiving this information, Officer Baird searched the closet in the
bedroom and found, on the top shelf, a box containing a handgun. Id. at 43. Finally,
Officer Baird testified that the Defendant took responsibility for what was found and that
everything was his. Id. at 45. Officer Baird ended by stating that the closet in which the
handgun was found contained men's clothing. Id. The Commonwealth's next witness to
testify was Detective Cornick who corroborated Officer Baird's account of the incident. Id
at 52-62. Defendant did testify that Cabrera said everything was his because he wanted
them [officers] to leave his family alone. Id. at 93. Defendant further testified that the guns
and drugs were not his. Id. at 97-101. The jury found the Defendant guilty on the charges
of Person Not to Possess a Firearm and Unlawful Possession of Drug Paraphernalia.
Defendant's pro se PCRA Petition is the first instance in which he is claiming
ineffective assistance of counsel for failure to call a witness. Defendant did not raise this
issue on appeal.6 The jurors most certainly would have seen a bias where the long~time
girlfriend/wife was testifying on behalf of her boyfriend/husband. Ms. Rolon further
7Transcript of Proceedings, Jury Trial, June 18 and 19, 2012, page 42 (hereinafter "N.T. Jury Trial
_'').
8 Defendant's only Issue on appeal was that the "trial court erred In falllng to suppress evidence found In
Appellant's house where there was an unlawful search and seizure by law enforcement officers." The
Superior Court affirmed the Trial Court's decision not to suppress the evidence.
6
testified (at the PCRA Hearing) that she did not know what was in the box yet proceeded
to take the box to an upstairs bedroom. Ms. Rolon testified that she wanted to take the
box away from the kids despite the fact that she did not know what was in the box. Ms.
Rolon! notwithstanding being in a close relationship with the Defendant, was unaware of
the status of Defendant's case and Ms. Rolon· did not even go to the trial (claiming that
she did not even know when it was). This case was not held in secret. The Jury Trial
took place on June 18 and 191 2012 and the sentencing did not occur until November 5,
2012. There was nearly five months between the guilty verdict and sentencing. Ms. Rolon
did not even attempt to come forward after discovering that the Defendant was found
guilty. Ms. Rolon knew she could have come forward but failed to do so.
Assuming arguendo that Ms. Rolon would have testified that the gun was not the
Defendant's, such testimony was elicited by the Defendant himself. The Defendant had
the opportunity to take the witness stand at trial and testify that 1) he did not know there
were drugs in his house, 2) the drugs were not his, 3) it was not his gun, and 4) he did
not know how the guns or drugs got to be in his house. N.T. Jury Trial 95. As such,
assuming that Ms. Rolon would have testified to the facts as she has outlined them,9 the
absence of Ms. Rolon's testimony was not so prejudicial as to having denied the
Defendant a fair trial.
Furthermore, Attorney McQuillan testified that the Defendant only discussed
wanting to call one witness (a state parole agent) but that Attorney McQuillan decided not
to call him because there was a motion in limine to not let the jury know that the Defendant
was on state parole. Mr. McQuillan also stated that he had a number for Ms. Rolon but
9 This Court notes that Ms Rolon's testimony was suspect at best.
7
was unable to get a hold of her as her number was crossed out in his file folder (indicating
that the number was no good). Finally, Mr. McQuillan indicated that had he been aware
that Ms. Rolon would have been a favorable witness to his client, he would have noted it
and would have certainly. tried to call her if he would have been able to locate her. As
such, the Defendant failed to establish that the witness was available and that the witness
was willing to testify for the defense at the time of trial.
Accordingly, we enter the following:
8
COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
v.
NO: 0916-CR-2010
PEDRO E. CABRERA : PCRA
· r ~- ORDER .
AND NOW, this ;J::£ day of May, 2016, upon consideration of Defendant's pro
se Motion for Post Conviction Collateral Relief, and Defendant's Amended Petition for
Special Relief Pursuant to the Post Conviction Relief Act, 42 Pa. C.S.A. 9541 et. seq.,
and any responses thereto, and following an evidentiary PCRA Hearing on February 19,
2016, IT IS HEREBY ORDERED AND DECREED that this Court finds that Defendant's
claims do not warrant PCRA relief and Defendant's PCRA Petition(s) are hereby
DENIED/DISMSED.
Defendant has the right to appeal this decision to the Superior Court of
Pennsylvania. This appeal must be taken within thirty (30) days of the date of this
Order.
'c.~
Furthermore, the Clerk of Courts of Dauphin County shall immediately servef:9 ,,,,:-•
';i.;,·• ...
copy of this Order upon the Defendant and the Defendant's counsel by certiftetj_ ma)l~ c.:) ·~·· .
. ·.
··'"I•
r-r1,'·\: cl'
return receipt requested, as well as upon the District Attorney. ··t:..··.;:_ ;;_
..,
. ..-·
. ....
9