Com. v. Rivera-Rivera, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JUAN JAVIER RIVERA-RIVERA, : No. 1030 MDA 2015
:
Appellant :
Appeal from the PCRA Order, May 27, 2015,
in the Court of Common Pleas of Lebanon County
Criminal Division at No. CP-38-CR-0000162-2013
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 06, 2015
Juan Javier Rivera-Rivera appeals from the order of May 27, 2015,
denying his first petition for post-conviction collateral relief filed pursuant to
the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The PCRA court, the Honorable Robert J. Eby, S.J., has aptly
summarized the history of this matter as follows:
On February 26, 2013, the Commonwealth
filed a Criminal Information charging [appellant] with
five violations of the [Drug Act], along with five
conspiracy counts relating to those violations.
Criminal Informations emanating from the same
investigation were filed contemporaneously against
[appellant]’s co-conspirators, Jose Rivera-Rivera and
Adelaida Gaston-Vasquez. The charges stemmed
from an investigation conducted by members of the
Lebanon County Drug Task Force, who observed
[appellant] selling heroin out of a vehicle parked at
* Former Justice specially assigned to the Superior Court.
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the rear of 1406 Willow Street, Lebanon, a residence
associated with Jose Rivera-Rivera, [appellant]’s
brother, and Jose’s wife, Adelaida Gaston-Vasquez.
Subsequent searches of the vehicle, the residence at
1406 Willow Street, customers seen making
purchases from [appellant], and [appellant] himself
uncovered various amounts of identically packaged
heroin.
Jose Rivera-Rivera pled guilty to all charges
against him on August 29, 2013, while [appellant],
along with Adelaida Gaston-Vasquez, proceeded to a
joint jury trial on December 3, 2013, where
[appellant] was represented by then First Assistant
Public Defender, Kimberly Adams. At the conclusion
of that trial, the jury found [appellant] guilty of all
charges except for Count III, Possession with Intent
to Distribute [(“PWID”)] the heroin found inside
1406 Willow Street. On January 15, 2014, this Court
sentenced [appellant] to an aggregate term of
imprisonment of 4-10 years.
[Appellant] filed a pro se [PCRA petition] on
August 8, 2014. On August 18, 2014, the Court
issued an Order appointing [counsel] to represent
[appellant] and directed that counsel file a
Supplemental or Amended Petition on [appellant]’s
behalf within thirty days.
PCRA court opinion & order, 5/27/15 at 2-3.
Before the Court is a counseled, Third
Amended Petition for [PCRA relief]. [Appellant]
argues he is entitled to post-conviction relief because
his trial attorney was ineffective. Specifically,
[appellant] argues that trial counsel should have
withdrawn from representation when it became
apparent there was a breakdown in communication
over differences in opinion regarding the decision to
have [appellant]’s co-defendant and brother,
Jose Rivera-Rivera, testify on behalf of [appellant] at
his trial. After a thorough review of the testimony
presented at a PCRA hearing held on April 27, 2015,
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the post-hearing Briefs submitted by the parties, and
the compete record of the case, we disagree.
Id. at 1-2.
On May 27, 2015, the PCRA court denied appellant’s petition. A timely
notice of appeal was filed on June 15, 2015. On June 16, 2015, the PCRA
court filed a statement pursuant to Pa.R.A.P. 1925(a), indicating that it was
relying on its May 27, 2015 opinion, and directing the clerk to immediately
transmit the record to this court. (Docket #62.)
Appellant has raised the following issue for this court’s review:
1. Whether Trial Counsel was ineffective for
failing to ask the Court to be removed where
Trial Counsel knew that there was a material
breakdown in communication between herself
and Appellant?
Appellant’s brief at 4.
Initially, we recite our standard of review:
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.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
“To prevail on a claim alleging counsel’s
ineffectiveness, Appellant must demonstrate (1) that
the underlying claim is of arguable merit; (2) that
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counsel’s course of conduct was without a
reasonable basis designed to effectuate his client’s
interest; and (3) that he was prejudiced by counsel’s
ineffectiveness.” Commonwealth v. Wallace, 555
Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
Commonwealth v. Howard, 538 Pa. 86, 93, 645
A.2d 1300, 1304 (1994) (other citation omitted). In
order to meet the prejudice prong of the
ineffectiveness standard, a defendant must show
that there is a “‘reasonable probability that but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.’”
Commonwealth v. Kimball, 555 Pa. 299, 308, 724
A.2d 326, 331 (1999), quoting Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’
is defined as ‘a probability sufficient to undermine
confidence in the outcome.’” Id. at 309, 724 A.2d at
331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
2052.
Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal
denied, 832 A.2d 435 (Pa. 2003). “We presume counsel is effective and
place upon Appellant the burden of proving otherwise. Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)
(citations omitted).
Instantly, Attorney Adams testified at the PCRA hearing before
Judge Eby that she explained why she did not intend to call
Jose Rivera-Rivera (“Jose”) as a witness, and appellant agreed with that
decision. Attorney Adams testified that if appellant had been adamant about
calling Jose as a witness at trial, Attorney Adams would have asked for a
sidebar conference and put the matter on the record:
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Q. And was he in agreement with your decision to
not call Jose as a witness?
A. My answer is going to be yes, because if he
was completely 100 percent adamant that Jose
still had to have been called I probably would
have asked off -- outside of the jury to explain
this situation to the judge. That despite what I
was telling my client that he wanted this
witness called and that I thought it was against
his best interest just to preserve the record of
that. He never wanted to talk to the judge
about that or anything else.
Q. So if there was this issue between the two of
you that you had this disagreement as to how
to proceed, you would have called the court’s
attention to it?
A. Yes, I have done that in other cases and I
would have done that in this case.
Q. To protect yourself from this sort of
proceeding?
A. Yes.
Q. And as far as your recollection goes,
[appellant] was on board with the decision not
to call Jose as a witness?
A. Yes.
Notes of testimony, 4/27/15 at 17-18.
But on more than one occasion through Ms. Lopez
[(Sarah Lopez, the interpreter)] I explained to him
my concerns of calling Jose to testify. And after
every time we talked about it he appeared to be in
agreement. He would acknowledge what we were
saying, he would say yes, okay.
Id. at 20.
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Attorney Adams testified that appellant appeared to understand
everything she was saying and that on multiple occasions they discussed the
issue of Jose testifying, including the morning of trial. (Id. at 21.)
Judge Eby, who also presided over trial, specifically found Attorney Adams to
be credible in this regard. (PCRA court opinion, 5/27/15 at 9.) In addition,
Attorney Adams’ testimony was corroborated by Lopez, who testified that
they discussed the matter many times and appellant appeared to be in
agreement with the decision not to call Jose as a witness:
Q. If you can recall, what were the discussions
that you would have been present for where
that was discussed?
A. From what I recall the -- [appellant] wanted to
call Jose -- [appellant] wanted to call Jose to
testify and Attorney Adams did not think that
was a good idea because we didn’t think it was
going to help the case.
Q. And did Attorney Adams explain through you
her concerns regarding that issue?
A. Yes, many times.
Q. When you explained those things to
[appellant], what was his response?
A. From what -- I can’t recall word-for-word
everything that was said. But from his
standpoint he wanted to call him and he -- I
don’t even know how to say it. He said he
wanted to call him, Attorney Adams would tell
him why he should not be called to testify and
then kind of just started talking about other
stuff.
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Q. During the course of these discussions did
[appellant] at some point agree not to call Jose
as a witness?
A. Yes, the day of [t]rial.
Q. Was there any anger or hostility or anything
like that between Attorney Adams and
[appellant] during these discussions?
A. Not that I recall. Stuff like that kind of sticks
out.
Notes of testimony, 4/27/15 at 25-26. Clearly, the underlying issue, that
there was some sort of breakdown in meaningful communication between
attorney and client, lacks arguable merit. A difference in opinion in trial
strategy would not constitute a reason for Attorney Adams to request
withdrawal.
In addition, appellant cannot show how he was prejudiced by
Attorney Adams’ continued representation. In fact, appellant testified at the
PCRA hearing that despite their alleged disagreement, he felt that
Attorney Adams could continue to effectively represent him at trial. (Id. at
10.) Appellant conceded that he never informed the trial court of any
disagreement between himself and defense counsel and that he was found
not guilty of one of the most serious offenses, involving the heroin found
inside the house. (Id.) Attorney Adams testified that the only reason this
case went to trial was because of the PWID charge involving the heroin
found inside the house, which appellant denied possessing. (Id. at 22-23.)
Appellant was acquitted of that charge, even without Jose’s testimony. (Id.)
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Throughout his brief on appeal, appellant argues that Jose would have
offered material, exculpatory testimony on his behalf. According to
appellant, Jose would have testified that appellant was not involved in selling
drugs and was only at Jose’s residence to fix Jose’s and Adelaida’s vehicles.
(Appellant’s brief at 22.)
In his amended petition, appellant alleged that trial counsel was
ineffective for failing to call a material witness, presumably Jose. (PCRA
court opinion, 5/27/15 at 3.) Subsequently, however, appellant indicated
that he was “no longer pursuing the failure to call witnesses issue.” (Id. at
4.) Jose was not called as a witness at the PCRA hearing, and there is no
indication in the record what he would have testified to, as neither appellant
nor his co-defendant, Adelaida Gaston-Vasquez, called Jose as a witness at
trial. As the PCRA court observes, Jose pled guilty to all charges prior to
appellant’s jury trial, including charges of conspiring to sell drugs with
appellant. If, in fact, as appellant alleges, Jose would have testified that
appellant was not involved in the sale of drugs, it would have contradicted
his sworn statements at the guilty plea hearing. (Id. at 11.) There is no
merit here.
Order affirmed. The Commonwealth’s motion for extension of time in
which to file its brief is denied as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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