Com. v. Rodriguez, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LUIS D. RODRIGUEZ
Appellant No. 3528 EDA 2015
Appeal from the PCRA Order November 12, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0802282-2006
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 14, 2016
Appellant, Luis D. Rodriguez, appeals from the November 12, 2015
order, denying his petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
We adopt the following statement of facts, derived from the PCRA
court’s opinion, which in turn is supported by the record. See PCRA Court
Opinion (PCO), 3/4/16, at 3-4. Appellant and Nicholas Santiago were both
involved romantically with Melissa Sanchez. On May 5, 2001, Mr. Santiago
discovered Appellant in bed with Ms. Sanchez. Mr. Santiago threw Appellant
down a flight of stairs, broke his nose, and gave him two black eyes.
Appellant informed several individuals that he was going to “get” Mr.
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*
Former Justice specially assigned to the Superior Court.
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Santiago. He approached Marco Agosto, Michael Wood, and Shawn
Beckham to assist him in murdering Mr. Santiago.
On May 8, 2001, Mr. Agosto drove Appellant and Mr. Beckham to Mr.
Santiago’s mother’s house, where they proceeded to shoot him to death.
Appellant later boasted about shooting Mr. Santiago to several witnesses. In
an altercation with another individual following the murder, Appellant
threatened to shoot that person just as he did Mr. Santiago.
A bench trial commenced July 19, 2007, and concluded July 26, 2007.
The trial court convicted Appellant of murder in the first degree, criminal
conspiracy, firearms not to be carried without a license, and possessing
instruments of crime.1 The court proceeded immediately to sentencing, and
sentenced Appellant to a mandatory sentence of life imprisonment for first-
degree murder, and concurrent terms of ten to twenty years’ incarceration
for conspiracy, three and one-half to seven years’ incarceration for VUFA,
two and one-half to five years’ incarceration for PIC.
Appellant timely filed post-sentence motions, asserting that his
conviction for first-degree murder was against the weight of the evidence.
The trial court denied this motion without a hearing. Appellant timely filed a
notice of appeal pro se; this Court requested that the trial court conduct a
Grazier2 hearing, and on October 3, 2007, the trial court appointed new
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1
18 Pa.C.S. § 2502(c), § 903, § 6106, and § 907, respectively.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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counsel for Appellant. Appellant filed a court-ordered Pa.R.A.P. 1925(b)
statement; the trial court issued a responsive opinion on September 2,
2008, and a supplemental opinion on December 4, 2008.
On February 23, 2010, this Court affirmed Appellant’s judgment of
sentence, and the Pennsylvania Supreme Court denied his subsequent
petition for allowance of appeal on January 30, 2012. See Commonwealth
v. Rodriguez, 996 A.2d 15 (Pa. Super. 2010) (unpublished memorandum),
appeal denied, 38 A.3d 824 (Pa. 2012).
On April 11, 2013, Appellant timely filed the instant PCRA petition,
contending that trial counsel was ineffective for failing to present alibi
testimony at trial, for improperly advising him to waive his right to a jury
trial, and for failing to object to the trial judge’s decision to limit the number
of spectators during the trial. On August 16, 2014, appointed counsel filed
an amended PCRA petition. On November 19, 2014, the Commonwealth
filed a motion to dismiss.
On June 2, 2015, the PCRA court conducted an evidentiary hearing
with regard to the alibi claim only. PCO at 4-9.
Trial counsel, David Rudenstein, testified at the hearing. Although
during their initial interactions, neither Appellant nor his parents mentioned
a possible alibi defense, Mr. Rudenstein nevertheless informed them of the
possibility. Mr. Rudenstein advised Appellant’s parents by letter that if they
wished to provide an alibi, they needed to give full statements to his private
investigator. Mr. Rudenstein further discussed the alibi defense with
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Appellant’s parents and attempted to elicit facts and details to support the
claim to no avail. Without details, he was concerned the claim would
irreparably harm Appellant’s defense. Mr. Rudenstein and Appellant
discussed these concerns, specifically, that the alibi was too general and
would not be persuasive. Appellant agreed with counsel’s assessment; the
defense was not an option and was not discussed in subsequent
correspondence or interviews. Additionally, Mr. Rudenstein testified that it
would not have cost Appellant’s parents additional money to speak with his
investigator.
Appellant’s mother, Maria Domenech, testified on his behalf.
According to her, due to the injuries Appellant sustained on May 5, 2001, he
was confined to her home until May 9, 2001. Ms. Domenech acknowledged
that she did not contact police about this defense during the initial
investigation or after Appellant’s arrest. She testified that trial counsel,
David Rudenstein, told her the proposed alibi defense was useless and
unbelievable. At first, Ms. Domenech denied that Mr. Rudenstein requested
formal statements be given to his investigator, but later claimed she did not
have the money to pay for an investigator’s services.
Juan Alicea, Appellant’s stepfather, also testified on his behalf.
According to him, Appellant was always home when Mr. Alicea returned from
work and could not leave the house because he could not see. Mr. Alicea
asked counsel about presenting an alibi defense but was told a judge or jury
would not believe him and that presenting Appellant’s parents as witnesses
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would be detrimental to the case. He claimed counsel had not asked for
specific details regarding Appellant’s whereabouts. At the time of trial, Mr.
Alicea still believed he would testify as an alibi witness, despite claiming Mr.
Rudenstein had refused to allow him to do so. Mr. Alicea testified as a
character witness but did not mention an alibi on the stand.
On November 12, 2015, the PCRA court formally dismissed Appellant’s
petition. Specifically, the court made credibility determinations: it did not
find the testimony of Appellant’s parents credible and did find Mr.
Rudenstein’s testimony credible. See Notes of Testimony (N. T.), 11/12/15,
at 2-3.
Appellant timely appealed and submitted a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court issued a responsive opinion.
Herein, Appellant presents three issues for our review, all involving
allegations of ineffective assistance of trial counsel.
A. Is Appellant entitled to post-conviction relief in the form of a
new trial as a result of trial counsel’s ineffective assistance in
failing to present an alibi defense on behalf of Appellant?
B. Is Appellant entitled to post-conviction relief in the form of a
new trial or a remand for an evidentiary hearing as a result of
trial counsel’s ineffective assistance in failing to properly advise
Appellant with regard to his waiver of his right to a jury trial?
C. Is Appellant entitled to post-conviction relief in the form of a
new trial or a remand for an evidentiary hearing as a result of
trial counsel’s ineffective assistance in agreeing to the trial
court’s clearing of the courtroom during the testimony of
Commonwealth witness Marco Agosto?
Appellant’s Brief at 4.
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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. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s findings
deference unless there is no support for them in the certified record.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A claim
will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
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First, Appellant asserts that trial counsel was ineffective for failing to
interview and call Appellant’s parents as trial witnesses in support of an alibi
defense. Appellant argues that had they testified, the court would not have
convicted him. See Appellant’s Brief at 4.
Here, the PCRA court determined that Appellant’s witnesses were not
credible in their testimony regarding trial counsel’s actions. See N. T.,
11/12/15, at 2. Further, it found Mr. Rudenstein’s testimony that he had
pursued the alibi defense in a reasonable fashion credible and that Appellant
and his family had provided Mr. Rudenstein no information that would lead a
reasonable defense attorney to argue an alibi defense. Id. at 2-3. We may
not disturb this finding, as it is supported by the record. See Brown, 48
A.3d at 1277.
Although the PCRA court’s credibility finding eliminates the argument
Appellant now presents to this Court, we will examine briefly whether the
failure to present an alibi defense was objectively reasonable.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would
have chosen that action or inaction, or, the alternative, not
chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client’s interests. We do not employ a
hindsight analysis in comparing trial counsel’s actions with other
efforts he may have taken.
Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2014) (en
banc) (citations omitted). To establish a claim that counsel was ineffective
for failing to investigate or call witnesses, an appellant must meet four
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prongs: 1) identify the witnesses; 2) demonstrate that defense counsel knew
of the existence of those witnesses prior to trial; 3) demonstrate the
witnesses would have provided material evidence at the time of trial; and 4)
establish the manner in which the witnesses would have been helpful to his
or her case. See Commonwealth v. Poindexter, 646 A.2d 1211, 1216
(Pa. Super. 1994).
Appellant cannot show that his parents would have provided material
evidence at the time of trial or that they would have been helpful to his case.
Appellant’s parents did not provide counsel with details to support an alibi
defense. Without information that could have been corroborated, defense
counsel was wary of calling Appellant’s parents, who could have been
perceived as biased by a fact-finder. He discussed these concerns with
Appellant, who agreed not to present an alibi defense. Based on the above,
counsel’s decision not to call Appellant’s parents as alibi witnesses had a
reasonable, objective basis. See Brown, 48 A.3d at 1277. Consequently,
this Court discerns no legal error in the PCRA court’s denial of Appellant’s
claim of ineffective assistance of counsel for failure to call Appellant’s
parents as alibi witnesses. See Ragan, 923 A.2d at 1170.
The PCRA court dismissed Appellant’s remaining allegations of
ineffective assistance of counsel without a hearing. PCO at 2. There is no
absolute right to an evidentiary hearing. See Commonwealth v.
Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On appeal, we examine
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the issues raised in light of the record “to determine whether the PCRA court
erred in concluding that there were no genuine issues of material fact and in
denying relief without an evidentiary hearing.” See Springer, 961 A.2d at
1264.
Appellant claims that counsel was ineffective for failing to properly
advise him with regard to his waiver of his right to a jury trial. He avers that
the only reason he waived this right was that he assumed the
Commonwealth would be seeking the death penalty. See Appellant’s Brief
at 4. This assertion is contradicted by testimony elicited during the waiver
colloquy and the record.
The Commonwealth stated at the waiver colloquy that it would not be
seeking the death penalty, and that this was not in return for a waiver; the
death penalty was off the table regardless of how Appellant chose to
proceed. See N. T., 7/18/07, at 30. Additionally, Appellant testified that
the decision to waive his right to a jury was knowingly, voluntarily, and
intelligently made, and executed a four-page written jury waiver form.
Appellant’s claim is belied by the record and meritless. See
Commonwealth v. Bishop, 645 A.2d 274, 277 (Pa. Super. 1994) (noting
that it is clear an appellant may not obtain post-conviction relief by claiming
that he lied during his waiver colloquy); see also Commonwealth v.
Smith, 450 A.2d 973, 974 (Pa. 1982) (noting that a signed jury waiver form
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must be accorded prima facie validity). Accordingly, we discern no error in
the PCRA court’s decision to dismiss this claim without a hearing.
Finally, Appellant claims that counsel was ineffective in agreeing to the
trial court’s “clearing of the courtroom” during the testimony of Marco
Agosto. He argues that this order violated his right to a public trial where
there was “no reason” to clear the courtroom. See Appellant’s Brief at 4.
The decision to limit the number of spectators in a courtroom is within
the sound discretion of the trial court and will be reversed only if the court
abuses its discretion in issuing an exclusion order or in fashioning the scope
and duration of said order. See Commonwealth v. Berrigan, 501 A.2d
226, 234 (Pa. 1985).
At trial, Mr. Agosto was uncomfortable testifying before a large crowd,
and the trial court judge, at a sidebar with counsel, noted Mr. Agosto’s fear
of testifying before the “extraordinary” number of people in the courtroom.
See N. T., 7/19/07, at 109-10. The trial court expressed concern that
spectators in the courtroom had previously acted in a disruptive manner.
Id., at 112, 122, 126. Counsel objected to clearing the courtroom, arguing
that this violated Appellant’s right to a public trial. Id. at 110-114.
Following argument, the trial court cleared the courtroom for Agosto’s
testimony alone, with the relatives of Appellant, his co-defendant, and the
victim, to remain. Id., at 126. Counsel then rescinded his objection to
clearing the courtroom for Mr. Agosto’s testimony only, subject to the
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presence of the aforementioned spectators. Id. at 127. Consequently,
counsel was not ineffective for failing to object to the trial court’s partial
closure of the courtroom during the testimony of a witness. We discern no
abuse of the court’s discretion.
We discern no error in the PCRA court’s decision to dismiss Appellant’s
claims without a hearing, as Appellant’s claims are without merit and he is
not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2016
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