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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
v. :
:
:
HECTOR L. PIMENTEL-CABAN, :
:
Appellant : No. 3454 EDA 2017
Appeal from the PCRA Order September 20, 2017
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003407-2013
BEFORE: LAZARUS, J., OLSON, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 12, 2019
Hector L. Pimentel-Caban (Appellant) appeals pro se from the order
denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
We provide the following background. On April 3, 2014, a jury
convicted Appellant of attempted criminal homicide and aggravated assault
in the shooting of Derrick Smith. Following the verdict, a presentence
investigation (PSI) report revealed Appellant’s lengthy criminal history,
which included 27 years in prison for his part in a contract killing in the
Virgin Islands and a conviction shortly after his release for weapons-related
offenses. On May 27, 2014, Appellant was sentenced to 20 to 40 years of
incarceration in the instant matter. Appellant filed post-sentence motions,
which were denied. On July 10, 2015, this Court affirmed Appellant’s
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* Retired Senior Judge assigned to the Superior Court.
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judgment of sentence, and on February 29, 2016, our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Pimentel-
Caban, 125 A.3d 445 (Pa. Super. 2015) (unpublished memorandum),
appeal denied, 132 A.3d 457 (Pa. 2016).
On March 1, 2017, Appellant timely filed a pro se PCRA petition.
Counsel was appointed, and on July 5, 2017, counsel submitted 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
July 11, 2017, the PCRA court issued notice of its intention to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not
file a response, and on September 20, 2017, the PCRA court dismissed
Appellant’s petition and permitted counsel to withdraw.
Appellant timely filed a pro se notice of appeal, and on October 24,
2017, the PCRA court ordered Appellant to file within 21 days a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. On
November 16, 2017,1 Appellant filed a motion requesting the PCRA court
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1 A motion requesting additional time to file a concise statement must be
filed on or prior to the due date of the concise statement. In this case, the
original due date for the concise statement was Tuesday, November 14,
2017. This motion was filed on Thursday, November 16, 2017. Pursuant to
the prisoner mailbox rule, we conclude that this motion was timely flied, as
it must have been handed to prison officials on or before November 14,
2017. See Commonwealth v. Rodriguez, 172 A.3d 1162 (Pa. Super.
2017) (holding that a document prepared by a pro se prisoner is deemed to
be filed on the day it was handed to prison officials).
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grant him additional time to file a concise statement to allow him to access
the prison law library. On November 21, 2017, the PCRA court granted
Appellant an additional 30 days; thus, Appellant’s concise statement was
then due on December 21, 2017.
On January 5, 2018, with no concise statement having been filed by
Appellant, the PCRA court filed an opinion suggesting to this Court that
Appellant’s issues on appeal are waived due to Appellant’s failure to file a
concise statement. See PCRA Court Opinion, 1/5/2018, at 4. Appellant filed
his concise statement on January 31, 2018.
On May 22, 2018, Appellant filed a motion with this Court to correct
the record and accept his concise statement as timely filed. On June 12,
2018, this Court issued an order remanding the matter to the PCRA court to
“make a determination as to whether Appellant timely filed his Rule 1925(b)
statement.” Order, 6/12/2018. The order further provided that “[i]n the
event the trial court determines the Rule 1925(b) statement was timely
filed, the trial court is directed to prepare a supplemental opinion pursuant
to Pa.R.A.P. 1925(a) in response.” Id. On June 25, 2018, the PCRA court
sent a letter to this Court stating that Appellant “failed to file his 1925(b)
statement in a timely manner.” Letter, 6/25/2018. According to the PCRA
court, Appellant “has produced no evidence to support the contention that
he placed his [c]oncise [s]tatement in the prison mailbox prior to the
deadline for a timely filing.” Id. at 2.
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Nonetheless, on September 10, 2018, this Court remanded the matter
to the PCRA court to prepare a supplemental opinion on the merits. The
PCRA court filed a supplemental opinion on October 2, 2018, which
addressed the issues set forth in Appellant’s concise statement.
Thus, before we reach the merits of this appeal, we must determine
whether Appellant’s concise statement was filed timely. Attached to his
January 31, 2018 concise statement is a letter dated January 23, 2018,
where Appellant claims he provided his concise statement to prison officials
on December 18, 2017. According to Appellant, the concise statement was
“returned to [him] on 12/29/17 for insufficient funds. [He] again attempted
to mail [it] on 1/1/18 and again [it was] returned to [him] for the same
reason.” Letter, 1/31/2018. On May 22, 2018, Appellant filed with this Court
cash slips from the prison which indicate he requested a mailing on
December 18, 2017, and that mailing was approved on December 20, 2017.
Based on the foregoing, we conclude that Appellant has satisfied the
tenets of the prisoner mailbox rule by supplying adequate proof that he
placed his concise statement in the hands of prison officials prior to the
December 21, 2017 due date. See Smith v. Pennsylvania Bd. of Prob. &
Parole, 683 A.2d 278 (Pa. 1996) (holding that a cash slip may be sufficient
evidence to determine that a document was handed to prison officials in a
timely fashion). Accordingly, we proceed to address the merits of the
appeal.
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On appeal, Appellant sets forth a series of generalized complaints
about trial counsel, including the fact that counsel did not present any
witnesses at trial and had only Appellant testify. Appellant’s Brief at 12.
Appellant further claims that because defense counsel was a “public
defender,” he was “a government agent who could not compromise the
government’s case.” Id. at 13 (unnecessary capitalization omitted). Thus,
according to Appellant, he was deprived of due process. Id. at 11.
This Court’s standard of review regarding an order denying
a petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of
legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
In deciding ineffective assistance of counsel claims, we
begin with the presumption that counsel rendered effective
assistance. To overcome that presumption, the petitioner must
establish: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s action or failure to act;
and (3) the petitioner suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable
probability that the result of the proceeding would have been
different. If the petitioner fails to prove any of these prongs, the
claim is subject to dismissal.
Commonwealth v. Durrett King, 195 A.3d 255, 259 (Pa. Super. 2018)
(internal citations and quotation marks omitted).
Instantly, the PCRA court concluded that to the extent these issues
were preserved in his PCRA petition, Appellant is not entitled to relief. The
record is clear that at trial Appellant had issues with trial counsel, which he
brought to the trial court’s attention. The following exchange occurred prior
to the start of the jury trial.
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The Court: Other issues?
[Trial counsel:] I have issues.
The Court: Yes, [trial counsel]?
[Trial Counsel:] I have issues. [Appellant] wanted to ask to
have me removed from his case. [Appellant], please state your
name for the record.
[Appellant:] My name is Hector Pimentel. Your Honor, if it
pleases the Court, I’d like to address the Court.
The Court: You may. Please remain seated.
[Appellant:] I believe that the beautiful [trial counsel] has an
ethical conflict in this matter. And I don’t think that –
The Court: What is the ethical conflict?
[Appellant:] Maybe she can explain that better to you than I can.
The Court: Well, I mean, you have to state the basis for the
ethical conflict, [Appellant].
[Appellant:] The ethical conflict is that at one point at the
beginning of the interview with her I stated to her that –
[Trial Counsel:] Well, let’s not go there.
[Appellant:] I stated to her –
[Trial Counsel:] Just for the record, I am -- I don’t think it’s
wise for him to be going through some of this.
The Court: Okay. You’ve been advised by your attorney that
what you are about to say may be detrimental to you. But you
are free to speak to me if you care to.
[Appellant:] Yes, Your Honor. Seeing [trial counsel’s] concern,
then I would just have to move for a mistrial.
The Court: On what basis?
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[Appellant:] On the basis that she has an ethical issue, which
for some reason she doesn’t want me to expose.
The Court: [Trial counsel,] is there an ethical issue?
[Trial Counsel:] There’s a potential ethical issue. Yes, there is.
The Court: I can’t decide things in a vacuum.
[Trial Counsel:] I understand that. I think –
The Court: It would be probably easier for you to say it, [Trial
Counsel,] because if [Appellant] says it if there’s something that
he says, I don’t know whether the District Attorney would try to
utilize that against [Appellant.] Obviously, if you make the
statement, it can’t be used against him. I guess conceivably
what you say may lead the District Attorney to an additional
investigative lead.
[Trial Counsel:] Well, Your Honor, as far as any ethical issues, I
would have to ask to have a discussion with you in chambers ex
parte, not on the record.
N.T., 4/1/2014, at 12-14.
With the consent of the Commonwealth, trial counsel and the trial
judge then met privately in chambers for five to ten minutes and then
returned to the courtroom. Upon their return, trial counsel had the
opportunity to meet with Appellant.
[Trial Counsel:] After consultation with [Appellant], it appears as
though the issue resolved itself.
The Court: Are you making any motions?
[Trial Counsel:] At this point, I am not making any motions.
The Court: [Appellant,] are you asking [Trial Counsel] to
withdraw from your case?
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[Appellant:] After consulting with her and she having explained
everything to me, Your Honor, I’m satisfied that she can
continue … to represent me.
Id. at 17.
The jury trial then proceeded that day without further mention of a
potential ethical issue until a discussion was had that afternoon regarding
Appellant’s decision to testify. The following on-the-record exchange took
place between trial counsel and Appellant outside the presence of the jury.
[Trial Counsel:] Okay. Now, at the beginning of this trial before
we began jury selection we were discussing whether or not you
will be testifying, did we not?
[Appellant:] Yes.
[Trial Counsel:] At that time you decided that you did not want
to testify.
[Appellant:] Yes.
[Trial Counsel:] And now you have decided that now that we are
at the close of the Commonwealth’s case you would like to
testify tomorrow; is that fair to say?
[Appellant:] That is correct.
[Trial Counsel:] Your Honor, I believe that we, you and I, had an
in-chambers discussion earlier before jury selection. And,
actually, at this moment I would move to withdraw from my
client’s case.
[The Court:] All right. The motion is denied.
[Trial Counsel:] Then, Your Honor, I would ask to be given
permission to allow my client to engage in a narrative.
Id. at 253-54.
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The trial court, recognizing the tension between Appellant’s
constitutional right to testify2 and trial counsel’s ethical obligations,3
permitted Appellant to testify in narrative form. Appellant testified
accordingly the following morning. See N.T., 4/3/2014, at 11-19. In a prior
case, our Supreme Court approved of the course of action taken in this case
and concluded that counsel could not be ineffective in this regard. See
Commonwealth v. Jermyn, 620 A.2d 1128 (Pa. 1993) (holding trial
counsel was not ineffective for having Jermyn testify in narrative form where
counsel reasonably believed Jermyn was lying).
Based on the foregoing, we agree with the PCRA court that Appellant’s
complaints about an “inherent conflict of interest” with respect to trial
counsel are without merit. Appellant’s Brief at 11; PCRA Court Opinion,
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2 See e.g., Commonwealth v. Baldwin, 8 A.3d 901, 902–03 (Pa. Super.
2010) (“The right of an accused to testify on his [or her] own behalf is a
fundamental tenet of American jurisprudence and is explicitly guaranteed by
Article I, Section 9 of the Pennsylvania Constitution.”).
3 See Pa.R.P.C. 3.3(a)(3) (“A lawyer shall not knowingly … offer evidence
that the lawyer knows to be false…. A lawyer may refuse to offer evidence,
other than the testimony of a defendant in a criminal matter, that the lawyer
reasonably believes is false.”). The Comment to that rule provides that
where counsel must seek permission by the court to withdraw, and is not
permitted to do so, trial counsel is required “to present the accused as a
witness or to give a narrative statement if the accused so desires, even if
counsel knows that the testimony or statement will be false.” Pa.R.P.C. 3.3
(Comment 7).
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10/2/2018, at 6-7. Accordingly, the PCRA court did not err in concluding
that trial counsel was not ineffective.
Appellant further asserts in an underdeveloped fashion that he was
“compelled” to testify due to trial counsel’s failure to present an adequate
defense. Appellant’s Brief at 12. However, Appellant does not explain what
witnesses should have been called or what evidence should have been
presented. It is also worth pointing out that during his testimony, Appellant
admitted to shooting Derrick Smith. N.T., 4/3/2014, at 17-18. Then,
Appellant acknowledged he had “shown [his] guilt” and requested a mistrial.
Id. at 19. The trial court denied that request.
Thus, the record is clear that any issues that occurred at trial were of
Appellant’s own making.4 Therefore, we conclude trial counsel was not
effective in her representation of Appellant, and the PCRA court did not err
by denying Appellant relief.
Order affirmed.
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4 Also without merit is Appellant’s claim that because trial counsel was a
public defender, she was “a [g]overnment agent who could not compromise
the [g]overnment’s case.” Appellant’s Brief at 13. As discussed supra, it is
evident that trial counsel did everything possible to advance Appellant’s
interests despite Appellant failing to heed that advice. Moreover, the PCRA
expressly excludes defense counsel from the definition of government
officials. See 42 Pa.C.S. § 9545(b)(4).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/19
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Com. v. Pimentel-Caban, H.
Combined Opinion