J-S09038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RENE FIGUEROA :
:
Appellant : No. 1325 EDA 2021
Appeal from the PCRA Order Entered June 1, 2021
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0000620-2013
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 12, 2022
Appellant Rene Figueroa appeals from the Order entered in the Court of
Common Pleas of Northampton County on June 1, 2021, denying his Amended
Petition filed pursuant to the Post Conviction Relief Act (PCRA).1 Following a
careful review, we affirm.
On direct appeal, a prior panel of this Court set forth the relevant facts
and procedural history herein, as recited by the trial court, as follows:
On the night of December 1, 2012, [appellant]
and [Javier Rivera-Alvarado (“Rivera-Alvarado”) ] were
at the Puerto Rican Beneficial Society Club (“Puerto
Rican Club”), a social club located on East Third Street
in Bethlehem, Northampton County, Pennsylvania.
[Appellant] was at the Puerto Rican Club to watch a
boxing match, as were the following individuals: Yolanda
Morales, [Rivera-Alvarado], Orialis and Angel Figueroa
(“Orialis” and “Angel”),[Footnote 7] and Luis Rivera
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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(“Rivera”). Orialis, Angel, and Rivera were the alleged
victims of [appellant] and [Rivera-Alvarado] and are
members of the same family. Ms. Morales was a friend
of the alleged victims' family. On the night in question,
a shootout between [appellant] and Orialis occurred at
approximately 2:30 a.m. on the street outside the
Puerto Rican Club, resulting in the death of Ms. Morales
and gunshot wounds to [appellant], [Rivera-Alvarado],
Orialis, Angel, and Rivera. After the shootout, the injured
individuals were transported to the emergency trauma
center at St. Luke's Hospital. There, Detective Martinez
conducted interviews with a number of the involved
individuals.
[Footnote 7] Orialis Figueroa and Angel Figueroa are
brothers with no relation to [appellant]. ...
Trial court opinion, 5/26/15 at 4-5.
The trial court also provided the following procedural
history:
[Appellant] has appealed to the Superior Court from the
judgment of sentence imposed on January 23, 2015.
Following a jury trial held from September 29, 2014, to
October 31, 2014, [appellant] was convicted of
involuntary manslaughter as a misdemeanor of the first
degree,[Footnote 1] aggravated assault as a felony of
the first degree,[Footnote 2] firearms not to be carried
without a license as a felony of the third
degree,[Footnote 3] and receiving stolen property as a
felony of the second degree.[Footnote 4]
[Footnote 1] 18 Pa.C.S.A. § 2504.
[Footnote 2] [18 Pa.C.S.A.] § 2702(a)(1).
[Footnote 3] [18 Pa.C.S.A.] § 6106(a)(1).
[Footnote 4] [18 Pa.C.S.A.] §§ 3903(a)(2), 3925.
On January 23, 2015, [appellant] was sentenced
to thirty to sixty months in state prison for involuntary
manslaughter, a consecutive period of 108 to 216
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months in state prison for aggravated assault, a
consecutive period of forty-two to eighty-four months in
state prison for firearms not to be carried without a
license, and a concurrent period of thirty to sixty months
in state prison for receiving stolen property. In the
aggregate, [appellant] was sentenced to 180 to 360
months in state prison, or fifteen to thirty years.
On February 9, 2015, [appellant] filed a Notice of
Appeal.[Footnote 5] However, on September 16, 2015,
the Superior Court, at docket number 421 EDA 2015,
dismissed [appellant's] appeal because his attorney
failed to file an appellate brief. Subsequently,
[appellant] sought the restoration of his appellate rights
by way of a petition for post-conviction collateral relief,
which the [trial] court granted in an Order filed on
January 13, 2017. The instant appeal followed.
[Footnote 5] [Appellant] did not file an optional post-
sentence motion pursuant to Pennsylvania Rule of
Criminal Procedure 720.
On March 30, 2017, [appellant], through new
counsel, filed a “Concise Statement of Errors Complained
of on Appeal Pursuant to Rule of Appellate Procedure
1925(b)” (“Concise Statement”)[.]
Trial court opinion, 4/25/17 at 1-2.
Commonwealth v. Figueroa, No. 1355 EDA 2017, unpublished
memorandum at 1–2 (Pa.Super. filed August 3, 2018) (unpublished
memorandum) (brackets and parentheses in original).
In affirming Appellant’s judgment of sentence on August 3, 2018, this
Court held, inter alia, that Appellant had not adequately preserved for
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appellate review his allegations of a Bruton2 violation and of trial court error
for failing to declare a mistrial due to prosecutorial misconduct during the
closing argument. See Id. at 4-5.
On August 7, 2018, Appellant filed a petition for allowance of appeal
with the Pennsylvania Supreme Court, and the Supreme Court denied the
same on January 22, 2019. See Commonwealth v. Figueroa, 650 Pa. 547,
200 A.3d 943 (2019) (Table).
On July 29, 2019, Appellant filed a PCRA petition pro se, and he filed a
supplemental, pro se PCRA petition on September 19, 2019. On August 1,
2019, counsel was appointed and granted leave to file an amended PCRA
petition. Counsel filed Appellant’s Amended Petition for Post Conviction
Collateral Relief on January 9, 2020, wherein he raised claims of ineffective
assistance of prior counsel. Following an evidentiary hearing held on
September 18, 2020, the PCRA court denied Appellant’s PCRA petition in an
Order and Opinion of the Court entered on June 1, 2021.
Appellant filed a timely notice of appeal on June 28, 2021, and his
concise statement of errors complained of on appeal on July 26, 2021. The
____________________________________________
2 Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the United
States Supreme Court held a confession from a non-testifying co-defendant
that directly incriminates a defendant in a joint trial is of such a powerfully
incriminating nature that an instruction to the jury limiting its consideration of
the confession is insufficient to cure prejudice to defendant from the
confession's admission at trial. Id. at 135-37.
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PCRA court did not file a subsequent Opinion pursuant to Pa.R.A.P 1925(a).
Instead, on July 27, 2021, the court filed its “Pennsylvania Rule of Appellate
Procedure 1925(a) Statement” wherein the court indicated “that the place in
the record where the reasons in support of the Order appealed from may be
found is the Opinion of the Court filed on June 1, 2021.”
In his appellate brief Appellant presents the following Statement of
Questions Involved:
I. DID THE TRIAL COURT ERR BY FINDING THAT TRIAL
COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
MOVE FOR A MISTRIAL FOLLOWING A PATENT
BRUTON VIOLATION?
II. DID THE TRIAL COURT ERR BY FINDING THAT
APPELLANT [SIC] COUNSEL WAS NOT INEFFECTIVE
FOR FAILING TO PRESERVE ON APPEAL THE DENIAL
OF A MISTRIAL BECAUSE OF PROSECUTORIAL
MISCONDUCT IN THE CLOSING ARGUMENT.
Brief of the Appellant at 4.
When reviewing the denial of a PCRA petition, both the Pennsylvania
Supreme Court and this Court “determine 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. Small, 238 A.3d 1267, 1280 (Pa.
2020) (citation omitted). Our standard of review of the PCRA court's legal
conclusions is de novo, while our scope of review is limited to the findings of
the court and the evidence of record. Id.
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Counsel is presumed effective; therefore, a petitioner must plead and
prove the following to succeed on a claim of ineffective assistance of counsel:
(1) [the] underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate [the petitioner's]
interests; and, (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceeding would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003) (citations
omitted). An ineffectiveness claim will be successful only where the petitioner
satisfies each prong of the aforementioned test. Commonwealth v. Daniels,
963 A.2d 409, 419 (Pa. 2009).
Appellant first argues that trial counsel was ineffective for failing to
move for a mistrial following a Bruton violation that occurred during the direct
testimony of Detective Fabian Martinez at which time he uttered Appellant’s
full name. Detective Martinez testified, inter alia, regarding the redacted
portion of Appellant’s co-defendant’s statement. Specifically, the detective
testified that co-defendant told him “on his way out, one of the bouncers has
come out of a back room and show Rene Figueroa….” N.T., 10/23/14, at 140.
Appellant posits that as a result of this statement, “the prosecutor was
responsible for assisting the jury into believing the bouncer showed a gun to
[Appellant] [and that] [t]his was a patent violation of Bruton.” Brief of the
Appellant at 21. Appellant further reasons that this testimony aided the
Commonwealth in establishing intent on the part of Appellant pertaining to
the murder and injuries sustained by others present. “Trial counsel’s theory
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of the case is that [Appellant] had a gun, but not the alleged bouncer’s gun,
when he was protecting the life of his friend. . . .” Id. at 25. Appellant
concludes that trial counsel’s failure to properly motion for a mistrial at that
time was prejudicial to Appellant. Id. at 26-27.
After briefly summarizing the evidence of the events leading to
Appellant’s arrest, the PCRA court, the Honorable Anthony S. Beltrami,
concluded that Appellant’s ineffectiveness claim pertaining to the Bruton
violation was meritless, and in doing so meticulously detailed its analysis as
follows:
Before Detective Martinez was to be questioned regarding the
contents of Co-Defendant's statement, the following discussion
was held:
[TRIAL COUNSEL]: Judge, may we see you?
THE COURT: Sure.
(The following discussion was held at sidebar.)
[TRIAL COUNSEL]: Judge, we talked about this a long time ago,
that if they were going to use this it would be a redacted version.
THE COURT: I assumed that you saw it.
[TRIAL COUNSEL]: I never saw that redacted version. I mean we
talked about it.
[PROSECUTOR]: Yes, we did.
THE COURT: I just assumed you talked this out.
[PROSECUTOR]: Yes. [Defendant] -- [Co-Defendant] refers to
[Defendant]. What he's going to say is that his name was
mentioned. He is going to just - he's going to say a person with
the group, and I told [Trial Counsel].
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THE COURT: His statement can only be used against [co-
Defendant]; am I right?
[TRIAL COUNSEL]: Yes.
[PROSECUTOR]: That's correct.
THE COURT: All right.
[TRIAL COUNSEL]: Okay, but, you're going to read the redacted
version?
[PROSECUTOR]: Yes.
[TRIAL COUNSEL]: Will you give them an instruction?
(End of discussion at sidebar.)
(See N.T., 10/23/2014, at 137:23-139:25.) At the conclusion of
the sidebar discussion, the court instructed the jury as follows:
“[L]et me just tell [you] that any statement that [Co-Defendant]
made can only be used against [Co-Defendant]. So with regard to
any statements that the detective relays to you that were made
by [Co-Defendant], you cannot consider them against
[Defendant].” (Id. at 139:4-11.)
Detective Martinez then proceeded to testify as to the
contents of Co-Defendant's statement, reaching as far as the sixth
paragraph of the statement, as reproduced above, without issue
or objection. (Id. at 139:14-140:23.) When Detective Martinez got
to that portion of Co-Defendant's statement that suggested that
[Defendant] was handed a gun by a bouncer shortly before the
shootout, the following exchange occurred:
[PROSECUTOR:] Did he say anything occurred as he was leaving
the club with his wife?
[DET. MARTINEZ:] Well, after he made a statement, he was again
advised that we were trying to figure out what happened, we
needed to know everything he saw. He did state that, on his way
out, one of the bouncers had come out of a back room and show
Rene Figueroa –
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[PROSECUTOR:] That wasn't -- that wasn't –
[DET. MARTINEZ:] I apologize.
[THE COURT:] Disregard that statement, ladies and gentlemen.
[TRIAL COUNSEL:] Judge, I want -- I reserve.
[THE COURT:] Go ahead.
[PROSECUTOR:] Let's back up. You said a bouncer brought a gun
out of the back room, right?
[THE COURT]: Well, at this point, Mr. Houck, I prefer that you not
question about this area.12
[PROSECUTOR:] That's all right.
(Id. at 140:24-141:21 (emphasis added).) Detective Martinez
then testified as to the remaining “non-gun” portion of Co-
Defendant's statement, paragraphs eight and nine as reproduced
above, thereby entering those portions of Co-Defendant's
statement into evidence.13 (Id. at 141:22-142:15.)
Defendant asserts that a “fatal” Bruton violation occurred
during Detective Martinez's testimony and that Trial Counsel was
ineffective for failing to move for mistrial as a result of that alleged
violation. (Def.'s Br. 3.) Thus, the court must first determine
whether there is arguable merit to the claim that Trial Counsel
should have moved for a mistrial.
In criminal trials, declaration of a mistrial serves
to eliminate the negative effect wrought upon a
defendant when prejudicial elements are injected into
the case or otherwise discovered at trial. By nullifying
the tainted process of the former trial and allowing a
new trial to convene, declaration of a mistrial serves
not only the defendant's interest but, equally
important, the public's interest in fair trials designed to
end in just judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial whenever the
alleged prejudicial event may reasonably be said to
deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern
whether misconduct or prejudicial error actually
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occurred, and if so, assess the degree of any resulting
prejudice.
Commonwealth v. Nevels, 203 A.3d 229, 244 (Pa. Super. 2019),
appeal granted in part, 216 A.3d 1042 (Pa. 2019), and aff’d, 235
A.3d 1101 (Pa. 2020) (quoting Commonwealth v. Baldwin, 158
A.3d 1287, 1293 (Pa.Super.2017)).
As noted above, in an Opinion and Order filed on February
17, 2014, the court denied Co-Defendant's motion to suppress the
statement he gave to Detective Martinez. Accordingly, leading up
to Detective Martinez's testimony, Co-Defendant's statement was
admissible, as a matter of law, with the only caveat being
compliance with Bruton and its progeny, as the statement was
incriminating to Defendant, on its face.
In Bruton, the United States Supreme Court held that
the admission into evidence of an extrajudicial
statement of confession by non-testifying co-defendant
A inculpating codefendant B in the crime, violated co-
defendant B's right of cross-examination under the
Confrontation Clause of the Sixth Amendment. In other
words, as the High Court stated subsequently in
Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct.
1702, 95 L. Ed. 2d 176 (1987), “where two defendants
are tried jointly, the pretrial confession of one cannot be
admitted against the other unless the confessing
defendant takes the stand.” In reaching this holding, the
High Court reasoned that, even if the jurors were
instructed to the contrary, there remained a substantial
risk that they would look to co-defendant A's
incriminating extrajudicial statement in assessing co-
defendant B's guilt. Bruton, supra at 126, 128-29, 88 S.
Ct. 1620; see id. at 135, 88 S. Ct. 1620 (“[T]here are
some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that
the practical and human limitations of the jury system
cannot be ignored.”); see id. at 137, 88 S. Ct. 1620
(“[I]n the context of a joint trial we cannot accept
limiting instructions as an adequate substitute for [a co-
defendant's] constitutional right of cross-
examination.”). Thus, in Bruton, the High Court created
a narrow exception to the general legal principle that the
jury is presumed to follow the court's instructions. Id. at
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135-37, 88 S. Ct. 1620; Richardson, supra at 206-07,
107 S. Ct. 1702.
In Richardson, supra at 202,107 S. Ct. 1702 the
High Court considered whether Bruton’s holding applies
when co-defendant A's confession was redacted to omit
any reference to co-defendant B, but co-defendant B
was “nonetheless linked to the confession by evidence
properly admitted against him at trial.” In answering
this question in the negative, the Richardson Court
distinguished between a confession that was
incriminating on its face to codefendant B (which was
clearly subject to Bruton’s rule) and a confession that
was incriminating to co-defendant B only by inference
from evidence subsequently introduced at trial. The
Richardson Court held that the latter was not subject to
Bruton’s rule. Id. at 208, 107 S. Ct. 1702. Thus, the High
Court in Richardson limited Bruton’s holding to
statements of confession by co-defendant A that were
facially incriminating to co-defendant B, exempting from
Bruton’s control those statements that were
incriminating to co-defendant B only after connection
with or linkage to other evidence admitted at trial.
Richardson, supra at 208-09, 107 S. Ct. 1702; see Gray
v. Maryland, 523 U.S. 185, 191, 195, 118 S. Ct. 1151,
140 L. Ed.2d 294 (1998); see also Commonwealth v.
Cannon, 610 Pa. 494, 22 A.3d 210, 2I9 (2011) (applying
Richardson); Commonwealth v. Brown, 592 Pa. 376,
925 A.2d 147, 157 (2007) (noting this Court's approval
of the redaction practices permitted under Richardson).
Commonwealth v. Roney, 79 A.3d 595, 623-24 (Pa. 2013).
When Detective Martinez used Defendant’s name while
testifying as to Co-Defendant's statement, Bruton was clearly
violated. However, Defendant’s first issue does not have arguable
merit for the following reasons. Immediately after the Bruton
violation occurred and before any additional testimony was
offered, the court ordered the jury to “[d]isregard that
statement,” by which it meant that Detective Martinez’s testimony
that Co-Defendant “did state that, on his way out, one of the
bouncers had come out of a back room and [had] show[n] Rene
Figueroa—” was stricken from the record and was not to be part
of the jury’s consideration of the case. (N.T., 10/23/2014, at
141:5-7.) The jury had previously been instructed by the court as
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follows: “Sometimes I may order evidence stricken from the
record after you hear it [and] [w]henever I . . . order evidence
stricken from the record, you must completely disregard that
evidence when deciding the case." (N.T. , 10/8/2014, at 13:25-
14:5 (emphasis added).) “[A] jury is presumed to follow a trial
court's instructions.” Commonwealth v. Reid, 99 A.3d 470, 501
(Pa. 2014). Moreover, right after the Bruton violation, the court's
striking of the testimony, and the court's cautionary instruction,
the prosecutor attempted to continue the questioning about Co-
Defendant's statement about the gun being shown to [Appellant]
by asking the question, “Let's back up, you said a bouncer brought
a gun out of the back room, right?” The court once again
immediately stepped in and precluded the line of questioning,
stating, “I prefer that you not question about this area.” (Id. at
141:16-20.) Thus, it is clear that the complained-of testimony was
not part of the evidentiary record that the jury could consider in
reaching its verdict. For this reason, the alleged prejudicial event
could not reasonably be said to have deprived [Appellant] of a fair
and impartial trial. Thus, there is no arguable merit to
[Appellant’s] contention that Trial Counsel was ineffective for
failing to request a mistrial, and Defendant suffered no prejudice
as a result of Trial Counsel’s failure to move for a mistrial during
Detective Martinez's testimony.
Even assuming, for the sake of argument, that this claim
has arguable merit or that Defendant suffered prejudice, Trial
Counsel had a reasonable basis for not making a motion for a
mistrial. Trial Counsel testified as follows regarding his decision
not to move for a mistrial at this point in the trial:
Well, the strategy moving forward was as follows.
Number one, the [c]ourt prior to [D]etective Martinez's
testimony clearly indicated that the testimony could only
be used against [Co-Defendant] and not [Defendant].
So that's the start of the testimony, and we presume
that the jury would follow that instruction, number one.
Number two, when the minor Bruton issue came up on
page 141 where he mentioned [Defendant], the [c]ourt
then immediately indicated to the jury to disregard that
statement, and again I presume that the jury did that.
And again, the statement as I read it here, recollecting
back, all it says is that one of the bouncers came out of
the back room and showed [Defendant] -- that's all it
says. It doesn't say anything more than that. And what
that exactly means is not really clear, and it wasn't that
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devastating or anything like that in the case, in the
grand scheme of this case, and the judge had cautioned
them prior to the testimony and told the jury to
disregard that issue, and I didn't think it was something
that was that important to move forward on, number
one, because it's a minor issue but, probably more
important at that point in the trial, I really didn't want a
mistrial in reality. That was such a minor issue in the
grand scheme of this case, and I believed that the case
had gone very, very well for myself and [Defendant],
mostly [Defendant], and we were in a good position to
end the murder portion of the case. If a mistrial was, in
fact, granted, it would have started the whole situation
over and put us in a position where I didn't feel it was
advantageous to [Defendant]’s best interests because I
thought, this is going very well, and sometimes you are
forced into a mistrial because the mistake is so
devastating that it's going to create such undue
prejudice, but that was certainly not this particular minor
Bruton situation with two cautionary jury instructions.
So maybe technically there was a basis for a mistrial
request, but I didn't think it was that significant in the
grand scheme of things. And also, I didn't really want a
mistrial. It's the old be careful what you wish for,
because I don't think it would be in [Defendant]’s
interests. And my assessment at that time is borne out
by the verdict in the case, you know, that we were in
good shape, position with the murder, and because he
was acquitted of all the murder charges. So that's my
thought process.
(N.T., 9/18/2020, at 12:22-15:1.) Trial counsel expanded on his
thought process as follows:
Well, obviously having tried cases for as many years as
I have, you know, the defense in this case -- whenever
there's a retrial, all the points that we may have raised
in the cross examination and the theories are now
exposed and the Commonwealth obviously has a chance
at a retrial to either rectify some of the mistakes, to
address our theories in a different way, prepare the
witnesses to do a better job on cross examination,
knowing what the cross examination is, you know. So
the Commonwealth, I think, would have an extreme
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advantage going into a retrial knowing all our theories,
all our cross examination, and all the different things
that we have done in the trial and be prepared to
address them in a better way. That's not good for us.
And again, we were in a good position at that point in
time and I didn't want to put the Commonwealth in a
situation where at another trial they could be in a better
position at that point in the trial, so I just thought
strategically -- we were ahead in my mind, and I just
didn't want to give them a chance to put us in a different
position.
(Id. at 27:8-28:7.) The court cannot find fault with Trial Counsel's
logic. Thus, Trial Counsel clearly had a reasonable basis for not
moving for a mistrial. For all of the above reasons, Defendant’s
first claim is without merit and does not entitle him to relief under
the PCRA.
___
12 The court knew that Co-Defendant's statement, from there,
suggested that a bouncer gave a gun to Defendant right before
Defendant left the Puerto Rican Club and the killing of Yolanda
Morales occurred. Knowing that Detective Martinez had just
mistakenly referred to Defendant by name, the court made a
spontaneous decision to preclude the Commonwealth from using
the remainder of Co-Defendant's statement about the gun, as it
would have placed a gun in Defendant’s hand before he even left
the club.
13 Defendant did not object to that portion of Co-Defendant's
statement being read into evidence.
PCRA Court Opinion, filed 6/1/21, at 8-16. (italics for emphasis and some
brackets in original).
Mindful of our deferential standard of review of a PCRA court’s credibility
determinations and following our review of the record, the parties’ briefs, and
the relevant caselaw, we find the PCRA court’s rejection of this claim was not
erroneous or an abuse of discretion.
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As stated supra, in order to obtain relief on his ineffectiveness claims,
Appellant must establish he was prejudiced; that is, he must demonstrate
“there is a reasonable probability that the outcome of the proceedings would
have been different but for counsel’s ineffectiveness.” Commonwealth v.
Chmiel, 30 A.3d 1111, 1127-28 (Pa. 2011). A failure to establish prejudice
alone requires us to reject Appellant’s claim. Commonwealth v. Webb, 236
A.3d 1170, 1176 (Pa.Super. 2020).
Following Detective Martinez’s brief mention of Appellant’s name, the
trial court twice instructed the jury to disregard the detective’s testimony and
prevented any further questioning in this regard. We observe, as did the PCRA
court, that jurors are presumed to follow the trial court’s instructions.
Commonwealth v. Tyson, 119 A.3d 353, 360 (Pa.Super. 2015), appeal
denied, 128 A.3d 220 (Pa. 2015).
Moreover, as he explained at the PCRA hearing, trial counsel made a
tactical decision not to move for a mistrial. In fact, counsel testified that he
believed he would have been ineffective had he done so given the minor
nature of the Bruton violation and the positive posture his client was in that
that juncture in the trial. N.T. PCRA hearing 9/18/20, at 21-25.
Specifically, counsel stated: “The totality of it is clear. It is crystal clear
to me that, A, I didn’t want a mistrial; B, it was minor; C, the judge gave
instructions that clearly took care of it.” Id. at 24. In fact, Appellant did not
want a mistrial, as he “knew we were doing well” and he “thought we were
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winning.” Id. at 26. Counsel’s belief that a mistrial would not have been in
Appellant’s best interest is substantiated by the fact that Appellant was found
not guilty of the most serious charges brought against him including murder.
Id. at 23.
Our Supreme Court has held that where, as herein, trial counsel’s
tactical decision to allow a case to go to the jury instead of moving for a
mistrial was reasonable where counsel believed it was in the best interests of
Appellant. Commonwealth v. Ogrod, 839 A.2d 294, 325 (Pa. 2003). The
PCRA court found trial counsel’s testimony to be credible and could find no
fault with counsel’s reasoning.3 Thus, in light of the foregoing, we find no
merit to Appellant’s first claim.
Appellant next argues the PCRA court erred when it found appellate
counsel had not been ineffective for failing to preserve in an appellate brief on
direct appeal the denial of a mistrial due to prosecutorial misconduct in the
Commonwealth’s closing argument. Before we consider the merits of this
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3 Although Appellant posits that trial counsel cannot to be deemed credible
because he argued an issue related to a mistrial in his concise statement of
errors complained of on direct appeal, see Appellant’s Brief at 27-28, counsel
testified he prepared that document without the benefit of the notes of
testimony and wanted to ensure he protected the record for appeal. He
stressed the trial had been long, having lasted several weeks, and he was
“trying not to miss anything” or “make a mistake” when he prepared that
concise statement N.T. PCRA Hearing, 9/18/20, at 21-25. As counsel
explained: “If my recollection was wrong, I want to cover it. Sometimes you
realize when you get the transcript your assessment was incorrect, but to err
on the side of putting more in and not less in.” Id. at 34.
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claim, we must determine whether it has been properly preserved for
appellate review, for a comparison of both Appellant’s concise statement and
his appellate brief evinces that Appellant develops a theory on appeal
regarding prosecutorial misconduct that differs from that which he raised
before the trial court.
In his Statement of Matters Complained of on Appeal, Appellant focused
primarily upon allegations in support of his contention that “[t]he trial court
erred in finding that trial counsel had a reasonable basis for not making a
Motion for a Mistrial following an undisputed Bruton violation. . . .” See
Statement of Matters Complained of on Appeal, filed 7/26/21, at ¶¶ 1-7.
Appellant concludes his concise statement with the following claims:
8. The trial court erred by denying [Appellant’s] request for a
mistrial for prosecutorial misconduct during closing.
9. Having induced prejudicial testimony in its case in chief, the
District Attorney again tried to “ring the bell” in its closing to
emphasize prohibitec [sic] and prejudicial testimony.
10. As aforesaid, any cautionary instruction by the tria[l] court
was insufficient to cure the defect in the record from the Bruton
violation during the trial.
11. The conduct of the Commonwealth at closing argument
renewed and refreshed the proscribed testimony in the minds of
the jury minutes/hours before they were given the case to begin
deliberations.
Id. at ¶¶ 8-11.
It is evident that Appellant did not specifically allege in his concise
statement that Appellate counsel had been ineffective for failing to preserve
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on direct appeal the issue of whether the trial court erred in failing to grant a
mistrial due to prosecutorial misconduct in the closing argument. In fact,
Appellant made no allegations of ineffective assistance of counsel in his
concise statement at all.4 It is the new theory of appellate counsel’s
ineffectiveness that Appellant presents in the second question presented in
his appellate brief.
It is well-settled that issues not included in a court-ordered concise
statement are deemed waived on appeal. See Pa.R.A.P. 1925(b)(4)(vii); see
Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa.Super. 1987), appeal
denied, 517 Pa. 621 (1988) (reiterating that “[a] theory of error different
from that presented to the trial jurist is waived on appeal, even if both theories
support the same basic allegation of error which gives rise to the claim for
relief.”)).
Our Supreme Court and this Court consistently have ruled that where
the trial court directs a defendant to file a concise statement pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), any issues not raised in
that statement shall be waived. See supra; see also Commonwealth v.
Bullock, 948 A.2d 818, 823 (Pa.Super. 2008) (citing Commonwealth v.
Lord, 719 A.2d 306, 308 (Pa. 1998)); Commonwealth v. Oliver, 946 A.2d
____________________________________________
4It is noteworthy that Appellant’s allegation of trial court error in not granting
Appellant a mistrial following Detective Martinez’s trial testimony was raised
by Appellant and found to be waived on direct appeal. See supra.
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1111, 1115 (Pa.Super. 2008) (noting that Lord “requires a finding of waiver
whenever an appellant fails to raise an issue in a court-ordered Pa.R.A.P.
1925(b) statement”). In Commonwealth v. Castillo, 888 A.2d 771, 775
(Pa. 2005), our Supreme Court explained that mandatory waiver of all claims
that do not strictly adhere to Rule 1925(b)’s requirements “provides litigants
with clear rules regarding what is necessary for compliance and certainty of
result for failure to comply.” See id. at 779-80.
Rule 1925 is intended to aid trial judges in identifying and focusing upon
those issues the parties plan to raise on appeal. The absence of a trial court
opinion addressing a particular claim poses a substantial impediment to
meaningful and effective appellate review. Commonwealth v. Lemon, 804
A.2d 34, 36 (Pa.Super. 2002). Thus, Rule 1925 is a crucial component of the
appellate process. Id. at 37. “When a court has to guess what issues an
appellant is appealing, that is not enough for meaningful review.”
Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super. 2001).
Furthermore, claims that are not raised before the trial court are waived.
See Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super. 2000)
(stating that “[a] claim which has not been raised before the trial court cannot
be raised for the first time on appeal.”). Moreover, “[e]ven if the trial court
correctly guesses the issues [an] [a]ppellant raises on appeal and writes an
opinion pursuant to that supposition the issue is still waived.”
Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa.Super. 2002).
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Importantly, our Supreme Court has held that an ineffective assistance of
counsel claim is distinct from an underlying claim of trial court error. See
Commonwealth v. Collins, 888 A.2d 564, 572 (Pa. 2005).
In light of the foregoing, because Appellant did not raise the issue of
appellate counsel’s alleged ineffectiveness in his Statement of Matters
Complained of on Appeal, he has failed to preserve it for our review.
Accordingly, despite the fact that the PCRA court found Appellant’s second
issue lacks merit, because Appellant develops an argument in support of a
newly raised theory in his appellate brief, it is waived.5
____________________________________________
5 Notwithstanding, even if we were to deem this issue to be properly preserved
for appellate review, as the PCRA court found, Appellant was not prejudiced
by Appellate counsel’s briefing errors on direct appeal. It is true that when,
during closing argument, the prosecutor briefly discussed that portion of
Appellant’s Co-Defendant’s statement made to police regarding a gun having
been shown to Appellant by a bouncer, he did so in contravention of the
principle that “a closing argument must be based upon evidence in the record
or reasonable inferences therefrom.” Commonwealth v. Culver, 51 A.3d
866, 878 (Pa.Super. 2012). However, as the PCRA court held, a mistrial due
to any prosecutorial misconduct was not warranted in light of the fact that any
prejudice to Appellant was cured by its instruction, which the jury is assumed
to have followed, and this reference, when the closing argument is viewed as
a whole, was harmless:
In this case, the isolated commentary in the prosecutor's
closing argument on a matter outside the evidentiary record did
not prejudice the jury or form in their minds a fixed bias or
hostility towards [Appellant] such that they could not objectively
weigh the evidence and render a true and fair verdict. First, the
court clearly instructed the jury, both in its instructions at the
beginning of the case and prior to closing arguments, that the
arguments made by counsel are not evidence. (See N.T.,
10/8/2014, at 12:22-13:2; N.T., 10/30/2074, at 4:2-24.) Second,
(Footnote Continued Next Page)
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____________________________________________
the court took swift, deliberate, and forceful action in response to
the Commonwealth’s improper argument when it instructed the
jury, in its final instructions, that
[t]he Commonwealth introduced evidence in this case of
a statement that it claims [Co-Defendant] gave to the
police, and at the time that evidence was offered I told
you that the statement could only be used in the case
against [Co-Defendant] and not in the case against
[Appellant]. Based upon certain arguments about [Co-
Defendant's] statement that the Commonwealth made
during the closing argument, I have now ruled as a
matter of law that you may not consider any portion of
[Co-Defendant's] statement, as I have stricken it from
the record. Therefore, you may not consider any portion
of [Co-Defendant's] statement to the police in any way
or for any purpose in your deliberations in either case
against either defendant.
(N.T., 10/31/2014, at 47:16-48:8.) In delivering this instruction,
the court removed any prejudice that arose from the prosecutor's
improper closing argument by cautioning the jury and highlighting
the improper argument as the reason for the court's curative
action. By completely severing Co-Defendant's statement to police
from the rest of the evidentiary record, the court made it less
likely that the jury would consider the portions of the statement,
that were properly in evidence, in a tainted and improper manner
because of the Bruton violation that was compounded by the
improper closing argument. Instead, the court's instruction
mandated that the jury skip over Co-Defendant's statement
entirely, including the Bruton violation and the improper mention
of the statement in the prosecutor's closing argument, in its
deliberations. The court is confident that the jury did just that
because, as stated above,”[a] jury is presumed to follow a trial
court's instructions.” Reid, 99 A.3d at 501. Lastly, in the event
that, notwithstanding the full range of curative and cautionary
instructions delivered by the court, the prosecutor's closing
argument produced some level of error that clung to the jury and
followed it into the deliberation room, any such error was harmless
in light of the fact that [Appellant’s] counsel conceded moments
earlier, in his own closing argument, that [Appellant] handled and
(Footnote Continued Next Page)
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Order affirmed.6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2022
____________________________________________
fired a gun during the incident,16 the de minimis nature of any
prejudice created, and the overwhelming independent evidence of
[Appellant’s] guilt. See Commonwealth v. Molina, 104 A.3d 430,
453-54 (Pa. 2014). For all of these reasons, even if this issue had
arguable merit and Appellate Counsel had no reasonable basis for
failing to brief it properly, [Appellant] suffered no prejudice.
____
16 (N.T., 10/30/2014, at 84:6-85:22.)
PCRA Court Opinion, filed 6/1/21, at 20-22.
6 “This Court is not bound by the rationale of the trial court, and we may affirm
the trial court on any basis.” Commonwealth v. Williams, 73 A.3d 609, 617
n. 4 (Pa.Super. 2013).
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