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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KELVIN MONTERO :
:
Appellant : No. 2383 EDA 2019
Appeal from the PCRA Order Entered August 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000977-2012
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JANUARY 11, 2021
Appellant Kelvin Montero appeals the order of the Court of Common
Pleas of Philadelphia County denying his petition pursuant to the Post-
Conviction Relief Act (PCRA).1 Appellant claims he is entitled to a new trial
due to the ineffectiveness of his trial counsel. After careful review, we affirm.
Appellant was charged with first-degree murder, conspiracy to commit
murder, and related crimes in connection with the September 26, 2011
shooting death of Jesus Rivera. The trial court previously summarized the
relevant facts as follows:
In the early morning hours of September 26, 2011, 16–
year–old Jesus Rivera [(the victim)] was still out celebrating the
Puerto Rican Day Parade in his Philadelphia neighborhood when
he was struck and killed by two stray gunshots fired by Kelvin
Montero [(Appellant)]. After the parade, which had taken place on
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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September 25, 2011, people were celebrating all along the area
of 5th and Cambria Streets, congregating on street corners,
playing music, and hanging out in and around their vehicles. This
was the unofficial parade “after party.”
It was at the Puerto Rican Day Parade after party that the
[Appellant] fought with his girlfriend in front of a street of
witnesses, and punched Saul Rodriguez (Rodriguez) in the face.
[Footnote 5] At approximately 8:30 P.M., Rodriguez was standing
near a black Lincoln Town Car full of girls, when [Appellant]
walked up to the car, pulled his girlfriend, Cynthia Vasquez
(Vasquez), out of it, and dragged her down the street. Angel
Ducvo (Ducvo) [Footnote 6] and Rodriguez saw [Appellant] strike
Vasquez. After bystanders tried to intervene, a fight ensued but
was broken up by the police. Later, [Appellant] punched Rodriguez
in the face when Rodriguez was trying to talk to the girls from the
Lincoln Town Car again. After Rodriguez was punched, John Perez,
[Footnote 7] who was described as a bald-headed, tattooed man,
got out of a burgundy red pickup truck and approached Rodriguez,
yelling: “you all don't know who you're messing with. That's my
boy. We'll be back. You don't know who you're fucking with.”
[Footnote 5] Rodriguez provided a statement about this
encounter to Detective Joseph Bamberski. Exhibit C–19.
When Rodriguez was called to testify, he recanted his prior
statement. Rodriguez admitted that the signature on the
statement appeared to be his, but stated that he did not
remember signing it. Rodriguez's account of the events of
September 25, 2011 was admitted for its truth pursuant to
Brady/Lively. Commonwealth v. Brady, 71 A.2d 34, 36
(Pa.Super.1987); Commonwealth v. Lively, 703 A.2d 467
(Pa.Super.1997).
[Footnote 6] Angel Ducvo's nickname is “Abo.” At trial,
Ducvo denied telling the truth in the statement he made
when he was brought into the Homicide Unit on September
28, 2011. Exhibit C–20. Ducvo's prior statement was also
admitted for its truth pursuant to Brady/Lively.
[Footnote 7] Perez was initially charged as a co-defendant.
On July 15, 2013, Perez entered a negotiated guilty plea to
murder of the third degree (F–1), criminal conspiracy (F–1),
and persons not to possess firearms (F–2). 18 Pa.C.S. §§
2502(c), 903, and 6105(a)(1), respectively. Per the
negotiations, this Court sentenced Perez to an aggregate
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term of not less than 22–and–a–half years nor more than
45 years['] imprisonment.
Later that night, after 12 A.M., Angel Figueroa (Figueroa),
who had also witnessed the earlier fight, saw [Appellant] and
Perez again at 5th and Cambria Streets. [Appellant] was wearing
black boots and a black hooded sweatshirt, and asked Figueroa
for the man who was fighting earlier. Figueroa testified that
[Appellant] had his hands under his sweatshirt, as if to indicate
that he had a gun on him. A short time later, [Appellant] [Footnote
8] opened fire, firing 30 shots in all directions. [Footnote 9]
[Footnote 8] Keyshla Rivera, Jesus's sister, identified the
[Appellant] as the shooter. Ducvo also identified [Appellant]
as the shooter pursuant to a photo array compiled by the
police. During the shooting, Ducvo did not actually see the
shooter's face, but he was able to recognize [Appellant] as
the shooter based on their earlier encounter on
Westmoreland Street 20 minutes before the shooting
began.
[Footnote 9] At the crime scene, 30 fired cartridge casings
(FCCs) were found. At 12:40 A.M. Officer Brian Waters
responded to a call at 5th and Cambria Streets to look for a
burgundy Ford F–150 pickup truck. Officer Waters stopped
the truck, which was being driven by Perez. The Ford pick-
up was taken in to the police station as evidence. A later
search of the truck revealed a Glock 9mm handgun in a
hidden compartment on the right side of the front
dashboard. Additionally, two handgun magazines were
found: one empty 30–round magazine and another full 15–
round magazine. Officer Lawrence Flagler, a ballistics
expert, determined that all 30 FCC's were fired from the
9mm handgun found in that truck.
After midnight on September 26, 2011, Jesus and his sister
Keyshla Rivera (Keyshla) were standing on the corner of 5th and
Cambria Streets, waiting for Keyshla's friend to pick them up,
when they heard people shouting, “they're shooting!” Upon
hearing the gunshots, Keyshla glanced in the direction of the
commotion, and witnessed [Appellant] in all black, “shooting like
crazy” down the street. Keyshla and Jesus ran in the opposite
direction of the shooter down Fairhill Street, attempting to seek
safety inside two homes. After being turned away from the two
homes on Fairhill Street, Keyshla told her brother to duck down
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behind two cars for cover. Finally, after the shooting ceased,
Keyshla noticed her brother, Jesus, on the ground screaming for
help. Jesus was struck by two bullets, one to the right side of his
chest that went through his heart and lungs, and a second to the
right upper arm. [Footnote 10]
[Footnote 10] Associate Medical Examiner, Dr. Aaron Rosen,
testified that one of the bullets penetrated the right side of
Jesus's body below his armpit. This bullet passed through
the thoracic cavity and Jesus's right lung, causing internal
bleeding. Dr. Rosen stated that the other bullet was
retrieved in the upper right arm and fractured Jesus's
humerus.
The search for [Appellant] commenced on September 28, 2011,
after an arrest warrant had been issued. On November 1, 2011,
Detective Burke found [Appellant] on the second floor of a home
in the Hunting Park neighborhood of Philadelphia, and he was
arrested.
Trial Court Opinion (T.C.O.), 10/29/14, at 2–4 (citations omitted).
Thereafter, a jury convicted Appellant of conspiracy to commit first-
degree murder but could not reach a verdict on the charges of first-degree
murder, carrying a firearm without a license, and possessing an instrument of
crime (PIC). On September 10, 2013, the trial court sentenced Appellant to
eighteen to forty years’ imprisonment for conspiracy.
After a retrial, on December 20, 2013, the jury convicted Appellant of
the remaining charges. On that date, the trial court sentenced Appellant to
life imprisonment for the murder conviction, two to seven years’ imprisonment
for carrying a firearm without a license, and one to five years’ imprisonment
for PIC. Appellant filed post-sentence motions, which the trial court denied.
On July 8, 2015, this Court affirmed the judgments of sentence. Appellant did
not file a Petition for Allowance of Appeal with the Supreme Court.
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On August 5, 2016, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed an amended petition on March 8,
2018. Appellant claimed trial counsel was ineffective in failing to impeach
eyewitness Keyshla Rivera with Facebook messages that she allegedly sent to
Appellant’s friend, Steven Ortiz, in which she contradicted her testimony
identifying Appellant as the shooter.
The PCRA court held hearings on March 8, 2019, April 15, 2019, and
June 14, 2019, at which Appellant presented the testimony of trial counsel,
Dennis Turner, Esq., and Steven Ortiz. The Commonwealth called Keyshla
Rivera to testify, but the PCRA court struck her testimony as it found the
prosecution violated its order concerning contact with Rivera. On July 10,
2019, the Commonwealth filed an interlocutory appeal regarding the PCRA
court’s decision to strike Keyshla Rivera’s testimony. On July 30, 2019, the
Commonwealth withdrew its appeal and on August 9, 2019, the PCRA court
dismissed Appellant’s petition. This timely appeal followed.2
Appellant’s sole claim on appeal is whether his trial counsel was
ineffective in failing to properly impeach one of the prosecution’s witnesses.
Our standard of review is well-established:
[o]ur review of the grant or denial of PCRA relief is limited to
examining whether the PCRA court's findings of fact are supported
by the record, and whether its conclusions of law are free from
legal error. Commonwealth v. Cox, 636 Pa. 603, 146 A.3d 221,
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2 As the PCRA judge, the Honorable Teresa Sarmina, retired from the bench
in August 2019, she did not write an opinion regarding her decision to dismiss
Appellant’s petition.
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226 n.9 (2016). The PCRA court's credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court's legal
conclusions. Commonwealth v. Burton, 638 Pa. 687, 158 A.3d
618, 627 n.13 (2017).
Commonwealth v. Small, 647 Pa. 423, 440–41, 189 A.3d 961, 971 (2018).
We review claims of ineffectiveness in light of the following principles:
[a]s originally established by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, [104
S.Ct. 2052, 80 L.Ed.2d 674] (1984), and adopted by
Pennsylvania appellate courts, counsel is presumed to have
provided effective representation unless a PCRA petitioner
pleads and proves all of the following: (1) the underlying
legal claim is of arguable merit; (2) counsel's action or
inaction lacked any objectively reasonable basis designed to
effectuate his client's interest; and (3) prejudice, to the
effect that there was a reasonable probability of a different
outcome at trial if not for counsel's error.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014)
(citations omitted). “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 600 Pa. 1, 963
A.2d 409, 419 (2009).
Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020).
Appellant claims his trial counsel was ineffective in failing to impeach
prosecution witness Keyshla Rivera with Facebook messages she allegedly
sent to Appellant’s friend, Steven Ortiz, that purportedly contradict her
identification of Appellant as the shooter. Further, Appellant contends that
trial counsel should have called Ortiz at trial to testify to this communication
for the purposes of authentication.
Appellant’s trial counsel indicated that, before Appellant’s first trial, one
of Appellant’s family members provided trial counsel with a computer printout
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of a private message conversation that allegedly occurred between Ortiz and
a social media account in the name of “Keyshiaa Marie Riveraa.” N.T., Trial,
7/18/13, at 9-10; N.T., PCRA hearing, 3/8/19, at 13-18. After trial counsel
shared this information with the trial court at Appellant’s first trial, the trial
court questioned the authenticity of the messages. N.T. Trial, 7/17/13, at 10-
11, N.T., Trial, 7/18/13, at 11-16.
At the PCRA hearing, in this case, trial counsel admitted that he did not
impeach Keyshla with the electronic messages at either of Appellant’s trials.
Trial counsel admitted that he was uncertain about whether he could
authenticate the printout as a conversation between Ortiz and Keyshla as
there was nothing on the document to indicate it was a Facebook message.
N.T., PCRA hearing, 3/8/19, at 19, 24-25. Trial counsel explained that at the
time of trial, he contacted Facebook’s security department to retrieve the
messages, but did not follow through with this task. N.T., PCRA hearing,
3/8/19, at 9-10. PCRA counsel claimed that the parties recently attempted to
retrieve the private messages through a formal request to Facebook, but were
unsuccessful. N.T., PCRA hearing, 6/21/19, at 6-10. Further, trial counsel
explained that he did not call Ortiz as a witness at trial as he did not have his
contact information and felt Ortiz would be uncooperative. N.T., Trial,
7/18/13, at 9-10; N.T., PCRA hearing, 3/8/19, at 20.
While it appears that Appellant admitted a photocopy of the messages
at the PCRA hearing as an exhibit, this document does not appear in the
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certified record.3 The PCRA court permitted PCRA counsel to read a portion of
the messages allegedly sent by Rivera to Ortiz into the record when
questioning Appellant’s trial counsel:
[PCRA counsel:] And you go down towards the bottom where
there is a response from Keyshiaa Mariee Riveraa, it starts “Ryte,”
but it’s spelled R Y T E, you see where I am?
[Trial counsel:] “Ryte, but he knows.”
[PCRA counsel:] What’s written there says, “Ryte, but he knows
who did it, THWHD, he ain’t saying shyt,” spelled SHYT, “like I
would love too help him,” I’m sorry, “like I would love too,” TOO,
“help him, RS, but his not saying who did like. If he want get out,
he gotta,” and there’s a bunch of typos here, “talk, Steven. And
I promise yal with my two lil anquels up in the sky that I would
help him ND, were is he at for I can talk to him.”
I know I didn’t read that exactly correctly, because there are a
bunch of typos, but you agree with me that in these messages
between Ms. Rivera and Mr. Ortiz, at least it purports to show that
Ms. Rivera was telling Mr. Ortiz that [Appellant] was not involved
in the shooting, but knew who did it?
[Prosecutor:] Objection.
[Trial court:] Overruled.
[Trial counsel:] I would agree that it appears to say that on this
document. However, I’m uncertain as to whether this was actually
a conversation between Keysh[l]a and Ortiz. I mean the whole
problem with this document was that I couldn’t authenticate it.
N.T., PCRA hearing, 3/8/19, at 18-19.
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3 We acknowledge that “[t]his Court cannot meaningfully review claims raised
on appeal unless we are provided with a full and complete certified record.”
Commonwealth v. Miller, 212 A.3d 1114, 1127 (Pa.Super. 2019). However,
as we conclude infra that Appellant has not shown he was prejudiced by trial
counsel’s failure to impeach Rivera with this document, we did not seek to
locate the document or inquire as to why the document was not included in
the certified record.
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When reviewing the record in this case, we find that, even assuming
arguendo that trial counsel could have authenticated and admitted the private
Facebook messages to impeach Rivera, Appellant has not shown prejudice, to
the effect that there was a reasonable probability of a different outcome at
trial if not for counsel's error. See Selenski, supra. Rivera unequivocally
testified at trial that Appellant was the individual wearing a black hoodie that
shot her brother. Rivera recalled that Appellant was with a bald-headed
individual in a red truck. Rivera confirmed that she was “sure” about her
identification. N.T. Trial, 12/16/13, at 150-53; N.T. Trial, 12/17/13, at 100-
103, 115-16, 128-29.
Further, Rivera’s testimony was corroborated by multiple eyewitnesses.
Angel Figueroa testified that on the night of the shooting, Appellant had
initiated a fight at the Puerto Rican Parade. Further, Figueroa indicated that
he conversed with Appellant near the corner of 5th and Cambria Streets after
this fight. Appellant was wearing all black, including a black hoodie, appeared
to be carrying a gun under his clothing, and was accompanied by a bald
individual. Appellant told Figueroa that he returned to the scene to find the
boy who he had fought with earlier. N.T. Trial, 12/17/13, at 157-173.
Several minutes later after Figueroa had walked away from Appellant,
Figueroa heard gunshots, causing him to look to the corner and see Appellant
shooting. N.T. Trial, 12/17/13, at 172-73. While Figueroa admitted he did
not see the shooter’s face, he knew the shooter was Appellant as he was the
only individual was wearing all black clothing and the shooter was standing in
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the nearly the same spot that Appellant had conversed with Figueroa minutes
earlier. N.T. Trial, 12/17/13, at 173-82.
Saul Rodriguez gave the police a statement admitting that he was the
individual that Appellant had punched at the Puerto Rican Parade. Shortly
after this altercation, Rodriguez told Appellant’s friend, a bald man in a red
truck, that he wanted to fight Appellant. The bald man in the red truck
indicated that Rodriguez would have to fight him instead of Appellant. N.T.,
12/17/13, at 224-25. While the men did not meet up again, Rodriguez
indicated that he was in a vehicle when the shooting began. Rodriguez
observed Appellant, who was wearing a black hoodie, standing at the corner
of 5th and Cambria Streets. N.T. Trial, 12/17/13, at 227-28.
Further, Angel Ducvo gave a written signed statement to the police in
which he confirmed that Appellant had fought with Rodriguez at the Puerto
Rican Parade. He also recalled that a bald man in a red Ford pickup truck
threatened to fight Rodriguez for Appellant. N.T. Trial, 12/17/13, at 88-90.
Ducvo admitted he did not see the shooter’s face but noted that the shooter
was the same size and height as Appellant and was wearing the same clothes,
including a black hoodie. N.T. Trial, 12/17/13, at 97, 266-72.
As noted above, officers apprehended John Perez, a bald-headed
individual, driving a burgundy Ford F-150 pickup truck, shortly after the
shooting. Keyshla Rivera identified Perez as the man she saw with Appellant
before the shooting. N.T. Trial, 12/17/13, at 91, 103-110. Officers recovered
a Glock 9mm handgun in a hidden compartment on the right side of the front
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dashboard of Perez’s vehicle that was determined to be the murder weapon
by a ballistics expert. N.T. Trial, 12/18/13, at 208.
Given the overwhelming evidence of Appellant’s guilt, we conclude that
Appellant failed to show that he was prejudiced by trial counsel’s failure to
impeach Keyshla Rivera with the electronic messages in question, such that
the result of his trial would have been different. As such, we affirm the PCRA
court’s decision dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/21
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