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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
OSCAR ALVARADO, : No. 963 EDA 2015
:
Appellant :
Appeal from the PCRA Order, March 13, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001284-2009
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2016
Oscar Alvarado appeals, pro se, from the order entered in the Court of
Common Pleas of Philadelphia County that dismissed his petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
(“PCRA”). We affirm.
The PCRA court set forth the following factual history:
At approximately 4:20 p.m. on October 21,
2008, Marta Martinez (decedent) was fatally shot by
[appellant] at Fairhill Square Park, located at the
intersection of Lawrence Street and Lehigh Avenue in
Philadelphia.
At approximately 3:00 p.m. that same day,
[appellant] and his cousin, co-defendant Cynthia
Alvarado (Cynthia), had purchased Xanax pills from
a person in Fairhill Park, which was well-known for
the illegal sale of prescription medication
pills.[Footnote 9] While [appellant] purchased the
pills in the park, Cynthia waited across the street in
* Retired Senior Judge assigned to the Superior Court.
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her car, a red Honda Civic. While waiting, Cynthia
encountered a childhood friend, Maiced
Beltran.[Footnote 10] Cynthia offered Ms. Beltran a
ride, which she accepted. When [appellant] returned
from purchasing the drugs, each person ingested
multiple Xanax pills.
[Footnote 9] The identity of this person
is unknown.
[Footnote 10] Ms. Beltran testified for
the Commonwealth to many of the facts
contained herein.
The trio spent an hour travelling to various
locations, with Cynthia driving, [appellant] sitting in
the passenger seat, and Ms. Beltran and Cynthia’s
one-year old daughter sitting in the back seat. At
some point during this hour, [appellant] pulled a gun
out from underneath his seat and showed it to
Ms. Beltran and Cynthia. At approximately
4:00 p.m., the trio returned to the park to purchase
more Xanax pills. Cynthia parked the car near the
intersection of 4th and Lawrence Streets. Upon
arriving, Ms. Beltran suggested to [appellant] that he
try to “get a play,” meaning that he should try and
get extra pills in addition to the amount for which he
was paying. [Appellant] began to walk away from
the car and into the park to make the purchase, but
Cynthia called him back and stated, “Cuz, you know,
you know what to do. You know, if they don’t give
you a play, just pull that shit out.” Ms. Beltran
understood this to mean that Cynthia was suggesting
to [appellant] that he should use his gun to get the
extra pills. Ms. Beltran got upset with Cynthia for
making this statement and began to yell at her.
[Appellant] then left the vehicle and walked into the
park. The decedent, a homeless woman, was
standing near the parked vehicle.
[Appellant] approached a male drug dealer in
the park,[Footnote 11] pulled the gun out of his
waistband, stuck it into the drug dealer’s midsection,
and took a bottle of Xanax pills that the drug dealer
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was holding in his hand. [Appellant] then turned
around and began walking back to the vehicle. The
drug dealer began yelling, “He robbed me!” and the
other people in the park, including the victim, joined
in. Some people started following [appellant].
[Appellant] ran towards the car and got back into the
passenger seat of the vehicle. The decedent
approached the vehicle and attempted to look inside
the driver’s side window. [Appellant] reached across
the driver’s seat and shot the victim through the
partially open driver’s side window. [Appellant] then
opened the passenger door, reached over the hood
of the car, and fired two to three more shots into the
park area.[Footnote 12] [Appellant] then told
Cynthia to drive away, and she obliged, leaving the
area of the park.
[Footnote 11] The identity of the drug
dealer is unknown.
[Footnote 12] Eyewitness accounts differ
as to how [appellant] shot the gun after
the initial shot through the open window.
One eyewitness, Edwin Schermety,
stated that [appellant] did not reach over
the hood but continued to shoot through
the window. In her police statement,
Cynthia stated that [appellant] walked to
the back of the car and fired the shots
from that location.
As the trio left the park, they ingested more
Xanax pills from the bottle that [appellant] had just
taken from the drug dealer. The group then drove to
various locations, including Cynthia’s father’s house,
where they traded the Honda Civic for her father’s
red Dodge pickup truck, and dropped off Cynthia’s
child. After leaving the house, the group also
purchased a vial of the drug angel dust.[Footnote
13] The group then drove to Cynthia’s apartment,
located at 106 West Thompson Street, where they
stayed until their arrest at approximately 8:00 p.m.
that evening. The police, having received a license
plate number for the red Honda Civic and descriptive
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information of [appellant] and Cynthia, were able to
eventually locate them both the same day. As the
police arrived at Cynthia’s residence to arrest them,
[appellant] went to the apartment of Erica Martinez,
a neighbor who lived in that same building, and
banged on her apartment door. When Ms. Martinez
opened the door, [appellant] stated, “I need to hide
in your apartment.” Ms. Martinez refused, and
[appellant] was arrested at that time.
[Footnote 13] Ms. Beltran testified that
she smoked the angel dust, but did not
see either [appellant] or Cynthia do so.
PCRA court opinion, 9/16/15 at 2-4 (citations to the notes of testimony
omitted).
The PCRA court also set forth the following procedural history:
On July 15, 2010, following a jury
trial[Footnote 1] before this Court, [appellant] was
found guilty of murder of the second degree (H-2),
robbery (F-1), and carrying a firearm without a
license (F-3).[Footnote 2] That same day, after the
jury returned its verdict, [appellant] pled guilty to
the charge of persons not to possess firearms
(F-2).[Footnote 3] Sentencing was deferred until
August 3, 2010, at which time [appellant] was
sentenced to the mandatory term[Footnote 4] of life
in prison.[Footnote 5]
[Footnote 1] At trial, [appellant] was
represented by Marit Anderson, Esquire
and Andrea Konow, Esquire of the
Defender Association of Philadelphia.
[Footnote 2] 18 Pa.C.S.[A.] §§ 2502(b),
3701(a)(1)(i), and 6106(a)(1),
respectively. [Appellant] was found not
guilty of criminal conspiracy,
18 Pa.C.S.[A.] § 903. [Appellant] was
tried with a co-defendant,
Cynthia Alvarado, who was also found
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guilty of murder of the second degree
(H-2) and robbery (F-1).
[Footnote 3] 18 Pa.C.S.[A.]
§ 6105(a)(1). On August 3, 2010,
[appellant] consolidated three open
cases and pled guilty to the following
charges: escape (F-3) (CP-51-CR-
0001865-2010), aggravated assault by a
prisoner (F-3) (CP-51-CR-0005962-
2010), and robbery (F-1), criminal
conspiracy (F-1), and possessing
instruments of crime (PIC) (F-1) (CP-51-
CR-0004737-2009).
[Footnote 4] 18 Pa.C.S.[A.] § 1102(a).
[Footnote 5] The robbery charge merged
with the charge of second degree murder
for sentencing purposes. As to the
charge of carrying a firearm without a
license, [appellant] was sentenced to a
concurrent term of not less than 3 ½ nor
more than 7 years [of] imprisonment.
As to the charge of persons not to
possess firearms, to which [appellant]
pleaded guilty, [appellant] was
sentenced to a concurrent term of not
less than five nor more than ten years
[of] imprisonment. As to the charge of
robbery, for which [appellant] had pled
guilty, [appellant] was sentenced to a
consecutive term of not less than 8 nor
more than 20 years [of] imprisonment.
As to the charge of criminal conspiracy,
to which [appellant] pled guilty,
[appellant] was sentenced to a
concurrent term of not less than 7 nor
more than 20 years [of] imprisonment.
As to the charge of PIC, to which
[appellant] pled guilty, [appellant] was
sentenced to a concurrent term of not
less than 1 nor more than five years [of]
imprisonment. As to the charge of
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escape, to which [appellant] pled guilty,
[appellant] was sentenced to a
concurrent term of not less than 2 ½ nor
more than five years [of] imprisonment.
As to the charge of aggravated
harassment by prisoner, to which
[appellant] pled guilty, [appellant] was
sentenced to a concurrent term of not
less than 2 ½ nor more than five years
[of] imprisonment.
Petitioner filed a timely notice of appeal on
August 16, 2010. On March 20, 2012, the Superior
Court affirmed [appellant’s] judgment of sentence,
and on January 30, 2013, our Supreme Court denied
[appellant’s] petition for allowance of
appeal.[Footnote 6]
[Footnote 6] Commonwealth v.
Alvarado, No. 2366 EDA 2010, slip op.
(Pa.Super., March 20, 2012)
(memorandum opinion), allocatur
denied 185 EAL 2012 (Pa., Jan. 30,
2013).
On February 28, 2013, [appellant] filed a
timely pro se PCRA petition. Counsel was
appointed[Footnote 7] and, on October 11, 2014,
filed a Finley “no merit” letter and motion to
withdraw as counsel.[Footnote 8] On February 5,
2015, having reviewed the pleadings and conducted
an independent review, this Court sent [appellant]
notice of its intent to dismiss his claims without a
hearing pursuant to Pa.R.Crim.P. 907 (907 Notice).
Consistent with the 907 Notice, [appellant’s] PCRA
petition was dismissed on March 13, 2015. This
timely appeal followed.
[Footnote 7] Janis Smarro, Esquire, was
appointed to represent [appellant] on
collateral attack.
[Footnote 8] Commonwealth v. Finley,
550 A.2d 213 (Pa.Super. 1988).
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Id. at 1-2.
Appellant raises the following issues for our review:
1. Whether the PCRA court erred by dismissing
[appellant’s] PCRA petition alleging ineffective
assistance of counsel and [c]onfrontation right
violations, where [appellant’s] [c]onfrontation
rights were violated when having denied a
motion to sever co-defendant Cynthia
Alvarado’s trial from [appellant’s] trial, the trial
court admitted the statements that
non-testifying co-defendant Cynthia Alvarado
had given to police and the prosecutor’s
opening statements undid the redaction.
[Appellant’s] 6th Amendment right to effective
assistance of counsel was violated, where trial
counsel failed to object to the [c]onfrontation
violations. [Appellant’s] rule-based and
Article I, Sec. 9 rights to effective assistance of
counsel were violated, where PCRA counsel
filed a no-merit letter despite existence of
these meritful [sic] claims.
2. Whether the PCRA court erred by dismissing
[appellant’s] PCRA petition alleging ineffective
assistance of counsel based on counsel’s failure
to interview Marvin Kennedy and eyewitness
Mark Vandegrift (who witnessed the incident,
and identified [and] spoke to the “robbery
victim” drug dealer “Albert”), and for failing to
subsequently call them to testify at trial.
Appellant’s brief at 4.
We limit our review of a PCRA court’s decision to examining whether
the record supports the PCRA court’s findings of fact and whether its
conclusions of law are free from legal error. Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s
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findings and the evidence of record in a light most favorable to the prevailing
party. Id.
To be entitled to PCRA relief, the defendant bears the burden of
establishing, by a preponderance of the evidence, that his conviction or
sentence resulted from one or more of the circumstances enumerated in
42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i)
and (ii); see also Mason, 130 A.3d at 618 (citations omitted).
Here, appellant’s claims assert that his trial and PCRA counsel provided
ineffective assistance.
Counsel is presumed effective, and in order to
overcome that presumption a PCRA petitioner must
plead and prove that: (1) the legal claim underlying
the ineffectiveness claim has arguable merit;
(2) counsel’s action or inaction lacked any
reasonable basis designed to effectuate petitioner’s
interest; and (3) counsel’s action or inaction resulted
in prejudice to petitioner. With regard to reasonable
basis, the PCRA court ‘does not question whether
there were other more logical courses of action
which counsel could have pursued; rather, [the
court] must examine whether counsel’s decisions
had any reasonable basis. Where matters of
strategy and tactics are concerned, [a] finding that a
chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an
alternative not chosen offered a potential for success
substantially greater than the course actually
pursued. To demonstrate prejudice, a petitioner
must show that there is a reasonable probability
that, but for counsel’s actions or inactions, the result
of the proceeding would have been different. Failure
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to establish any prong of the [] test will defeat an
ineffectiveness claim.
Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).
Appellant first contends that PCRA counsel was ineffective in failing to
challenge the effectiveness of trial counsel because trial counsel,
Attorneys Marit Anderson and Andrea Konow, (1) failed to move to sever
appellant’s trial from that of his co-defendant, Cynthia Alvarado; (2) failed to
object when the Commonwealth read Ms. Alvarado’s redacted statement to
the jury because the redaction failed to comply with Bruton v. United
States, 391 U.S. 123 (1968); and (3) failed to object to the
Commonwealth’s opening statement because it referred to appellant by
either his name or “defendant” 28 times and this somehow negated the
redaction in violation of Bruton.
Our review of the record reveals that on February 5, 2015, the PCRA
court filed its notice of intent to dismiss appellant’s PCRA petition pursuant
to Pa.R.Crim.P. 907 (Rule 907 Notice). Appellant then filed a timely
response to the PCRA court’s Rule 907 Notice. In that response, however,
appellant did not allege ineffective assistance of PCRA counsel.
Consequently, appellant’s failure to raise his claims of ineffectiveness of
PCRA counsel in his response to the Rule 907 Notice results in waiver of
those claims on appeal. See Commonwealth v. Ford, 44 A.3d 1190, 1198
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(Pa.Super. 2012) (finding that “when counsel files a Turner/Finley[1]
no-merit letter to the PCRA court, a petitioner must allege any claims of
ineffectiveness of PCRA counsel in a response to the court’s notice of intent
to dismiss.”); see also Commonwealth v. Pitts, 981 A.2d 875, 880 n.4
(Pa. 2009).
With respect to appellant’s underlying claims on his first issue on
appeal, appellant first alleges that trial counsel were ineffective for failing to
move to sever appellant’s trial from that of his co-defendant,
Cynthia Alvarado. Appellant then further alleges ineffectiveness for trial
counsel’s failure to object to two Bruton violations.
With respect to the motion to sever, the record belies appellant’s
contention that trial counsel failed to move for severance. The record
reflects that trial counsel filed a motion to sever on August 18, 2009. The
record further reflects that Attorney Anderson again objected to a joint trial
at a pre-trial hearing when she stated, “We continue our vociferous objection
to the cases being tried together.” (Notes of testimony, 7/21/10 at 77.)
Additionally, defense counsel renewed the motion immediately prior to jury
selection, and the trial court denied the motion. (Notes of testimony, 7/8/10
at 131-132, 144.) Therefore, this claim lacks arguable merit.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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With respect to appellant’s underlying claim of trial counsel’s
ineffectiveness for failing to object to appellant’s claimed Bruton violations,
the record reflects that although appellant included this claim in his
Pa.R.A.P. 1925(b) statement, he failed to preserve this issue in his PCRA
petition and did not raise it in his response to the PCRA court’s Rule 907
Notice. Therefore, appellant waives this issue on appeal. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). See also Commonwealth
v. Smith, 121 A.3d 1049, 1055 (Pa.Super. 2015) (recognizing that a PCRA
petitioner is unable to raise his claims for the first time in his Rule 1925(b)
statement).
Appellant finally claims that trial counsel were ineffective for failing to
interview Marvin Kennedy and Mark Vandegrift and for failing to call them as
defense witnesses.
When the trial court conducts a colloquy with the defendant that
demonstrates that the defendant knowingly, voluntarily, and intelligently
decided against calling defense witnesses, a subsequent claim that counsel
was ineffective for failing to call such witnesses lacks arguable merit. See
Commonwealth v. Pander, 100 A.3d 626, 642-643 (Pa.Super. 2014); see
also Commonwealth v. Rios, 920 A.2d 790, 802-803 (Pa. 2007)
(concluding that a claim of ineffective assistance of counsel in failing to call
alibi witnesses lacked arguable merit where the trial court conducted a
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colloquy of defendant regarding whether he agreed with the decision not to
call witnesses); Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002)
(finding that because defendant “expressed the view that the decision not to
call alibi witnesses was his as well as trial counsel’s, and his decision has not
been shown to have been unknowingly, involuntarily, or unintelligently
made, this allegation of ineffectiveness lacks merit.”).
Here, the following colloquy took place:
THE COURT: . . . . So have either of you taken any
drugs, alcohol, or medication in the last 12 hours?
....
[APPELLANT]: No.
....
THE COURT: . . . . Do you each read, write, and
understand the English language?
....
[APPELLANT]: Yes.
THE COURT: Have you ever been diagnosed with a
mental illness?
....
[APPELLANT]: No.
....
THE COURT: . . . . Now, were there any witnesses
that either of you wanted to call or anything that you
discussed with your attorney that is not going to
happen? Because we’re about to finish this
afternoon and so if there’s nobody coming to testify
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and you thought there was, this is the moment to
tell me.
....
[APPELLANT]: Nobody.
....
THE COURT: And do you each understand that you
are bound by -- which means stuck with -- the
answers that you’re giving me here under oath in
open court?
....
[APPELLANT]: Yes.
THE COURT: So you can’t come back later and say,
well, I really did have witnesses, but I answered this
way because my lawyer said if we delayed anything,
you’d get mad.
Believe it or not, people actually say these
things after the fact.
If you have anything to say, this is the
moment to say it and you can’t later blame your
lawyer for telling you. You’re under oath, and this is
when you’re answering me.
Do you understand that?
....
[APPELLANT]: Yeah, I understand.
Notes of testimony, 7/13/10 at 159-165.
Based on this colloquy, appellant’s claim that trial counsel were
ineffective for failing to interview and call Mr. Kennedy and Mr. Vandegrift
lacks arguable merit.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
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