J-S37039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSE L. GONZALEZ, :
:
Appellant : No. 1815 MDA 2016
Appeal from the Order entered October 25, 2016
in the Court of Common Pleas of Lebanon County,
Criminal Division, No(s): CP-38-CR-0000176-2013
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 27, 2017
Jose L. Gonzalez (“Gonzalez”) appeals from the Order granting in part,
and denying in part, his first Petition filed pursuant to the Post Conviction
Relief Act.1 We affirm.
This Court previously set forth the relevant factual history underlying
this appeal, which we adopt for the purpose of this appeal. See
Commonwealth v. Gonzalez, 116 A.3d 696 (Pa. Super. 2014)
(unpublished memorandum at 1-4). The trial court sentenced Gonzalez to
an aggregate prison term of 20 to 40 years for a shooting that left the victim
paralyzed. This Court affirmed the judgment of sentence. See id.
On November 12, 2015, Gonzalez, pro se, filed the instant PCRA
Petition. Gonzalez was appointed PCRA counsel, who filed an Amended
Petition, wherein Gonzalez claimed that his trial counsel was ineffective, and
1
See 42 Pa.C.S.A. §§ 9541-9546.
J-S37039-17
further claimed that his direct appeal counsel was ineffective for failing to
timely petition for allowance of appeal, to the Pennsylvania Supreme Court,
of this Court’s Order affirming his judgment of sentence.2 On October 21,
2016, the PCRA court conducted a hearing. On October 25, 2016, the PCRA
court entered an Order granting in part, and denying in part, Gonzalez’s
Petition. Specifically, the PCRA court granted Gonzalez’s Petition with regard
to his claim of appellate counsel’s ineffectiveness, and reinstated his right to
petition the Pennsylvania Supreme Court for allowance of appeal of this
Court’s Order affirming Gonzalez’s judgment of sentence.3 The PCRA court
determined that Gonzalez’s remaining issues of trial counsel’s ineffectiveness
lacked merit, and, accordingly, denied them. This timely appeal followed.
On appeal, Gonzalez raises the following issues for our review:
1. Whether trial counsel was ineffective for failing to obtain the
victim’s toxicology report[,] and use said report at trial?
2. Whether trial counsel was ineffective for failing to object to
the Commonwealth’s statement during closing arguments,
where the Commonwealth stated that [Gonzalez] said, “I
didn’t do shit,” and spelling “Ha! Ha!”?
2
The PCRA court determined that, although direct appeal counsel had
deposited the appeal papers in the Lebanon County Courthouse mail system
in a timely fashion, the Supreme Court refused to accept the documents,
and quashed the appeal as untimely, because they had not been mailed
directly from a post office. See PCRA Court Order, 10/25/16, at 5
(unnumbered).
3
Our Supreme Court subsequently denied Gonzalez’s Petition for allowance
of appeal. See Commonwealth v. Gonzalez, 2017 Pa. LEXIS 816 (Pa.
2017).
-2-
J-S37039-17
3. Whether trial counsel was ineffective for failing to properly
cross-examine witnesses[] Lawrence Graves [“Graves”], Jose
Martinez [“Martinez”] and Sergeant [Johnathan] Hess
[“Sergeant Hess”]?
4. Whether trial counsel was ineffective for failing to object to
the introduction of the Grand Jury transcripts that were used
with Sergeant Hess to impeach Anthony DeJesus [“DeJesus”],
as said transcripts were never shown or provided to
[Gonzalez] or his counsel?
5. Whether trial counsel was ineffective for failing to file a
motion in limine asking the court to preclude the testimony at
trial that the U.S. Marshal[]s were used to apprehend
[Gonzalez,] and that it took eight (8) months to do so?
6. Whether trial counsel was ineffective for failing to call
witnesses after [Gonzalez] had asked counsel to do so?
Brief for Appellant at 4-5 (some capitalization omitted).
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). Further, a PCRA court’s credibility determinations should
be provided great deference by reviewing courts. See Commonwealth v.
Johnson, 966 A.2d 523, 539 (Pa. 2009).
To prevail on a claim of ineffective assistance of counsel, a
PCRA petitioner must … demonstrate: (1) that the underlying
claim has arguable merit; (2) that no reasonable basis existed
for counsel’s actions or failure to act; and (3) that the petitioner
suffered prejudice as a result of counsel’s error. To prove that
counsel’s chosen strategy lacked a reasonable basis, a petitioner
must prove that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.
Regarding the prejudice prong, a petitioner must demonstrate
that there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s action or
-3-
J-S37039-17
inaction. Counsel is presumed to be effective; accordingly, to
succeed on a claim of ineffectiveness[,] the petitioner must
advance sufficient evidence to overcome this presumption.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal
citations and quotation marks omitted). A failure to satisfy any prong of the
test for ineffectiveness will require rejection of the claim. Commonwealth
v. Martin, 5 A.3d 177, 183 (Pa. 2010).
In his first issue, Gonzalez contends that trial counsel was ineffective
for failing to request the victim’s toxicology report. Brief for Appellant at 10.
Gonzalez believes that the victim lied about the amount of alcohol he had
consumed on the night of the shooting. Id. at 10-11. Gonzalez asserts that
he had asked counsel to request the victim’s toxicology report in order to
demonstrate that the victim had consumed more than two beers, and
possibly other substances. Id. at 11. Gonzalez claims that the outcome of
trial would have been different if trial counsel had obtained the victim’s
toxicology report and used the report at trial. Id. at 13.
In its Order, the PCRA court addressed Gonzalez’s first issue, and
determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at
2 (unnumbered) (wherein the PCRA court noted that the victim admitted
that he had been drinking on the night of the shooting, and that Gonzalez
“has never produced any intoxication report that would have impeached the
victim’s own testimony[,] nor has [Gonzalez] proffered any witness or any
expert who would have impugned the victim’s testimony based on his level
-4-
J-S37039-17
of intoxication.”). We agree with the PCRA court’s determination, which is
supported by the record and free of legal error, and affirm on this basis as to
Gonzalez’s first issue. See id.; see also Commonwealth v. Natividad,
938 A.2d 310, 322 (Pa. 2007) (noting that “[a] PCRA petitioner must exhibit
a concerted effort to develop his ineffectiveness claim and may not rely on
boilerplate allegations of ineffectiveness.”).
In his second claim, Gonzalez contends that trial counsel was
ineffective for failing to object to statements made during the prosecutor’s
closing arguments that Gonzalez had said “I didn’t do shit” and spelling “Ha!
Ha!” Brief for Appellant at 14. Gonzalez asserts that he never confessed to
the shooting, and the Commonwealth never asked Gonzalez what he was
referencing when he made those comments. Id. at 14-15. Gonzalez claims
that, although he asked trial counsel to object to the prosecutor’s
statements, counsel failed to do so. Id. at 15. Gonzalez argues that the
outcome of his trial would have been different had counsel objected to the
prosecutor’s remarks. Id. at 16.
In its Order, the PCRA court addressed Gonzalez’s second issue, and
determined that trial counsel was not ineffective for failing to object to the
prosecutor’s closing remarks because the remarks were based on Gonzalez’s
Facebook posts, and were not unsupported or improper. See PCRA Court
Order, 10/25/16, at 2 (unnumbered). We agree with the reasoning of the
-5-
J-S37039-17
PCRA court, which is supported by the record and free of legal error, and
affirm on this basis as to Gonzalez’s second issue. See id.
In his third issue, Gonzalez contends that trial counsel was ineffective
for failing to properly cross-examine Graves, Martinez, and Sergeant Hess.
Brief for Appellant at 17. Gonzalez asserts that statements made by Graves
and Martinez were contradictory.4 Id. at 17-24. Gonzalez argues that the
outcome of his trial would have been different had counsel properly cross-
examined these witnesses. Id. at 25.
In its Order, the PCRA court addressed Gonzalez’s third issue, and
determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at
2-3 (unnumbered). We agree with the reasoning of the PCRA court, which is
supported by the record and free of legal error, and affirm on this basis as to
Gonzalez’s third issue. See id.
In his fourth issue, Gonzalez contends that trial counsel was ineffective
for failing to object to the introduction of Grand Jury transcripts to impeach
DeJesus, because such transcripts had never been provided to Gonzalez or
his trial counsel prior to their admission into evidence. Brief for Appellant at
4
At the PCRA hearing, Gonzalez testified that, according to Sergeant Hess’s
reports, Martinez initially denied that Gonzalez was present at the scene of
the shooting, but subsequently testified at trial that Gonzalez was the
shooter. See Brief for Appellant at 20-22. Gonzalez also testified that he
requested his trial counsel to impeach Martinez with Sergeant Hess’s
reports, and to question Sergeant Hess regarding Martinez’s initial
statements to police that Gonzalez was not present at the scene of the
shooting. See id. at 23-24.
-6-
J-S37039-17
26. Gonzalez asserts that the outcome of his trial would have been different
if counsel had objected to the transcripts. Id. at 30.
In its Order, the PCRA court addressed Gonzalez’s fourth issue, and
determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at
3-4 (unnumbered). We agree with the reasoning of the PCRA court, which is
supported by the record and free of legal error, and affirm on this basis as to
Gonzalez’s fourth issue. See id.
In his fifth issue, Gonzalez contends that trial counsel was ineffective
for failing to file a motion in limine to preclude testimony at trial that U.S.
Marshals were used to apprehend Gonzalez, and that it took them eight
months to do so. Brief for Appellant at 31. Gonzalez asserts that he was
“on the run for a completely different charge[,]” and that “[w]hen he was
arrested[,] it wasn’t for this case.” Id. at 31. Gonzalez claims that his
classification as being “on the run” from authorities hurt his case because it
made him seem guilty. Id. at 32. Gonzalez argues that “the [j]ury should
have never become privy to such knowledge[,] and the prejudicial nature of
such facts outweighs the probative value.” Id. at 34. Gonzalez contends
that the outcome of his trial would have been different if counsel had filed a
motion in limine to preclude such testimony. Id. at 35.
In its Order, the PCRA court addressed Gonzalez’s fifth issue, and
determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at
3 (unnumbered). We agree with the reasoning of the PCRA court, which is
-7-
J-S37039-17
supported by the record and free of legal error, and affirm on this basis as to
Gonzalez’s fifth issue. See id.
In his sixth issue, Gonzalez contends that trial counsel was ineffective
for failing to call witnesses that Gonzalez wanted to be called. Brief for
Appellant at 36. Specifically, Gonzalez asserts that trial counsel should have
heeded Gonzalez’s request to call Sharday Ritter (“Ritter”) and Christopher
Malandra (“Malandra”) to testify at trial. Id. at 36-39. Gonzalez claims that
trial counsel never attempted to communicate with Ritter or Malandra, and
merely sent them a subpoena a few days prior to trial. Id. at 40. Gonzalez
asserts that Malandra testified at the PCRA hearing that, had he been
contacted by trial counsel, he would have testified on Gonzalez’s behalf. Id.
at 40.
To prevail on a claim of trial counsel’s ineffectiveness for failure to call
a witness, the petitioner must show (1) that the witness existed; (2) that
the witness was available; (3) that counsel was informed of the existence of
the witness or should have known of the witness’s existence; (4) that the
witness was prepared to cooperate and would have testified on the
petitioner’s behalf; and (5) that the absence of the testimony prejudiced the
petitioner. See Commonwealth v. Fletcher, 750 A.2d 261, 275 (Pa.
2000). Trial counsel will not be found ineffective for failing to investigate or
call a witness unless there is some showing by the petitioner that the
-8-
J-S37039-17
witness’s testimony would have been helpful to the defense. See
Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996).
In its Order, the PCRA court addressed Gonzalez’s sixth issue, and
determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at
4 (unnumbered). We agree with the reasoning of the PCRA court, which is
supported by the record and free of legal error, and affirm on this basis as to
Gonzalez’s sixth issue. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
-9-
Circulated 05/31/2017 03:30 PM
ENTE~:;~ •. ;- .. .. :.:.
CLERK OF c0u;ns
LE BA i·~ C N, Pi\
IN THE COURT OF COMMON PLEAS OF LEEf:Al!SCOO'TC~Ntrfyj 1 17
PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA CR-176-2013
v
JOSE GONZALEZ PCRA HEARING
ORDER
AND NOW, this 21st day of October, 2016, after hearing, and in consideration of the
testimony adduced, the Court notes as follows:
A. The above-referenced matter stems from a tragic incident where the victim was
shot at a party .. As result of the shooting, the victim was permanently paralyzed. Following the
shooting, the victim was dumped in front of the Lebanon Good Samaritan Hospital while those
who drove him to that location left the scene. Thereafter, no one cooperated with the police.
B. As a result of an intensive investigation, the police were able to discern that the
shooting occurred at a party. The victim clearly identified the Defendant as the person who shot
him. However, none of the other witnesses were cooperative even after being asked to testify
before a Grand Jury. The other people present at the party denied recalling anything or gave
different conflicting descriptions of events.
C. The Defendant told police that he was not even present at the party. On most
occasions the Defendant told his own counsel that he was not present at the party. Today he
attempts to alter that paradigm to indicate that he was present at the party, but did not pull the
trigger. Today he claims an unnamed individual known as "Dinero" was the shooter.
D. The Defendant has filed a PCRA Petition and has submitted numerous arguments
why his conviction should be overturned. We will separately address each of those arguments.
E. The Defendant claims that counsel erred by failing to present the victim's
toxicology report. At all times pertinent to the Defendant's trial his claim was that he was not
even present at the party._ At no point did the Defendant claim that he was acting in self-defense.
F. The victim himself admitted on the witness stand that he had been drinking on the
night in question. According to defense counsel, primary focus of the victim's medical records
was upon his very serious and life-threatening medical condition and not upon the level of his
intoxication. We do not view defense counsel's failure to obtain or emphasize the victim's
intoxication report as having any significant bearing on the outcome of the Defendant's trial.
Moreover, even up to today's date the Defendant has never produced any intoxication report that
would have impeached the victim's own testimony nor. has he proffered any witness or any
expert who would have impugned the victim's testimony based upon his level of intoxication.
G. The Defendant argues that his counsel should have objected to the
Commonwealth's closing argument that referenced Facebook posts submitted by the Defendant.
We have reviewed the Commonwealth's argument. We do not find the argument to be improper,
in fact, it was based upon evidence that was presented. Because we do not find the
Commonwealth's argument to be unsupported or improper, the Defendant's argument that his
counsel should have objected will be rejected.
H. The Defendant provides less than clear argument that Lawrence Graves should
have been cross-examined at trial in a different manner. As context, Mr. Graves implicated the
Defendant in a statement given to the police after the incident occurred. At trial, Mr. Graves
recanted the inculpatory statement he made to police. At trial, Mr. Graves did not identify the
Defendant as the shooter. Given the dynamic of what occurred at trial with Mr. Graves, we are
at a loss to perceive how the Defendant believes that trial counsel should have examined him in a
different fashion.
I. The Defendant also argues that his counsel should have cross-examined Jose
Martinez about Mr. Martinez' initial refusal to identify the shooter. The trial transcript clearly
reveals that trial counsel did in fact question Mr. Martinez about his prior inconsistent
statements. Therefore, the Defendant's claim of ineffectiveness on this ground is unsupported by
the transcript at trial.
J. The Defendant continues his argument that his flight should not have been part of
the trial. As background, the Defendant left Lebanon immediately after this shooting occurred
and traveled to another state. He told others that he was never returning to Lebanon. The
Commonwealth sought to introduce the Defendant's relocation as proof of consciousness of guilt.
The Defendant's attorney objected to this. Extensive argument was conducted regarding the
relevance of the Defendant's relocation. Eventually, this Court decided that the Defendant's
relocation could be considered as flight by the jury if it chose to do so. If the jury determined
that the Defendant's conduct was flight, the Court instructed that the jury could consider that
flight as evidence of a guilty conscious. The Defendant included this issue in his direct appeal.
Eventually the Pennsylvania Superior Court affirmed the manner in which this Court handled the
Defendant's flight. In no way was defense counsel ineffective for failing to properly argue the
relevance of the Defendant's relocation or flight. The fact that this Court and the Pennsylvania
Superior Court disagree with the Defendant's position is not ineffectiveness on the part of
defense counsel.
K. The Defendant argues that he should have been provided with Grand Jury
testimony transcripts so that he could review those transcripts by himself. Prior to trial, the
Court did withhold Grand Jury transcripts from the defense due to concerns about retaliation
toward those who testified before the Grand Jury. However, the Court did direct the disclosure
of transcripts to the Defendant's counsel prior to the commencement of trial itself. Those
transcripts were turned over to the Defendant's counsel. The Defendant's counsel used those
transcripts for trial preparation. However, trial counsel did not provide a copy of the transcripts
to the Defendant. Even.up until today's date, the Defendant has never identified any passage
from any transcript that would have impacted the trial or its outcome. Without proof that earlier
disclosure of the transcripts could or would have affected the outcome of trial, the Defendant's
argument regarding disclosure ofthe Grand Jury's jury transcripts to himself is without merit.
L. The Defendant argues that trial counsel should have called Sharday Ritter. Trial
counsel indicated that he did try to subpoena Sharday Ritter. However, Ms. Ritter left the
jurisdiction of Lebanon. Her whereabouts were unknown. Even as of today's date, no one
knows the location of Sharday Ritter. Ms. Ritter did not testify at today's proceeding and we
have no idea what she would have said had she been available and called as a witness. There is
no evidence that Ms. Ritter's testimony would have affected the outcome of trial. Therefore, the
Defendant's argument based upon the testimony ofSharday Ritter will be denied.
M. The Defendant also claims that trial counsel was ineffective for failing to call
Christopher Malandra. Mr. Malandra did testify today. Initially, the Court notes that we did not
find Mr. Malandra's testimony to be at all credible. He mumbled whenever an uncomfortable
question was asked and he responded "I don't remember" when asked directly who pulled the
trigger on the night in question. Mr. Malandra testified that the Defendant was present at the
party. When asked whether the Defendant was located in close proximity to the victim, Mr.
Malandra at one point responded "I don't remember". At another point, Mr. Malandra stated "I
don't think so." Mr. Malandra's testimony, had it been presented at trial, would have
contradicted the Defendant's own claims that he was not even located at the party. In addition,
Mr. Malandra's testimony was obviously not credible. For either and both of these reasons, we
do not find that Mr. Malandra's presence at trial would have impacted the outcome of it.
N. As a general proposition, we declare based upon the testimony presented today
that Attorney Nick Sidelnick was far more credible than the Defendant. We find the Defendant's
testimony to be self-serving at best.
0. The Defendant's last argument is that his trial counsel failed to properly perfect
an appeal to the Pennsylvania Supreme Court. Following the Superior's Court's denial of the
Defendant's direct appeal claims, the Defendant did request his counsel to file an appeal with the
Pennsylvania Supreme Court. Counsel deposited the appeal papers in the Lebanon County
Courthouse mail system in a timely fashion. Unfortunately, the Supreme Court refused to accept
documents that were not mailed directly from a post office. For this reason, the Defendant's
appeal to the Supreme Court was quashed as untimely.
Accordingly, the Order of this Court is as follows:
1. Other than the issue pertaining to the Defendant's appeal to the Supreme Court,
we declare all of the other arguments presented today by the Defendant to be without merit. All
such arguments will be denied.
2. With respect to the Defendant's claim of ineffectiveness related to the appeal of
his sentence to the Pennsylvania Supreme Court, we will grant the Defendant's Post-Conviction
Relief Petition. The Defendant shall have 30 days from today's date to properly perfect an
appeal from the decision of the Pennsylvania Superior Court to the Pennsylvania Supreme Court.
Thereafter, the matter will proceed before the Supreme Court in accordance with the
Pennsylvania rules of appellant procedure.
3. A copy of this Order is to be provided to the District Attorney of Lebanon
County, to the Defendant's attorney, and to the Defendant by certified mail returned receipt
requested.
.•·' ~
BY THE COURT:
BRADFORD H. CHARLES
BHC/al
Copy:
David Arnold, Esq.
Melissa Montgomery, Esq.//616 Paxton Place, Lititz, PA 17 543
Jose Gonzalez//LC.CF