Com. v. Ayala, H. ( 2015 )

J-S74014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HECTOR AYALA,
Appellant No. 3547 EDA 2013
Appeal from the PCRA Order Entered December 3, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013066-2008
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 20, 2015
Appellant, Hector Ayala, appeals from the post-conviction court’s
December 3, 2013 order denying his petition for relief filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we vacate the court’s order and remand for further proceedings.
This Court set forth the facts of this case in our disposition of
Appellant’s direct appeal, as follows:
Complainant, M.R., age sixteen (16), and her mother, Maria
Alfaro, a co-defendant in this case, resided at 3234 N. 7th Street,
Philadelphia, PA, where they had a close relationship with
Appellant[,] [whom] M.R. referred to as Uncle Tato. M.R.
testified that when she was nine (9) years old Appellant and [her
mother] came to her and told her about a religion known as
Santeria and that Appellant was a “Santero” in the religion, i.e.,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S74014-14
one who is believed to communicate with the spirits, to have
spiritual gifts, who has visions, and the ability to foretell the
future by reading cards, etc. Appellant explained to M.R. that
she had the power to protect her and her family if she engaged
in certain rituals and made offerings to her spirit guides.
Appellant further explained that the ritual and offerings required
M.R. to engage in oral sex with him. Appellant assured M.R. that
she was under no pressure, but that if she did not comply, her
family would be in poverty and that it would be very difficult for
them to move forward.
At the time, M.R.’s mother was involved in a relationship with a
married man, Rick, who M.R. related to as her stepfather. M.R.
had been led to believe that Rick’s wife was angry about the
relationship and that she cast a spell on [M.R.’s] [mother] which
resulted in multiple problems for [M.R.’s] “stepfather,” [her
mother], and M.R. Soon after M.R. was asked to perform the
“ritual,” her mother lost her job and her “stepfather” went to jail.
Eventually, M.R. was persuaded that performing the rituals
would lift the curse and make her life better, and she therefore
consented to permit Appellant to perform the ritual.
M.R. described the ritual, which occurred in her mother’s room,
and in her [mother’s] presence, in detail. [M.R.’s mother] held
her daughter’s hand, while the naked Appellant fondled the
child’s body and ultimately performed oral sex on her,
[collecting] her vaginal secretions into a bottle as a spiritual
offering. The oral sex between Appellant and M.R. went on for a
week, ultimately with vaginal intercourse to “finish the job” and
chase the curse away. M.R.’s mother was not present while
Appellant had intercourse with M.R. and Appellant instructed
M.R. not to tell her mother.
When M.R. was eleven (11) or twelve (12) years old, Appellant
instructed M.R. to perform oral sex on him. M.R. stated that
Appellant penetrated her mouth with his penis. Appellant
assured M.R. that to perform this act was doing something extra
for the spirits and made them happier and it would provide a
greater benefit to her family.
M.R. testified that Appellant never threatened or harmed her in
any way. She believed that by performing the “ritual” the spirits
would protect her mother and Rick and get them out of the
trouble they were in. She stated: “I felt I was doing something I
was supposed to: that this is something I had to do to help the
-2-
J-S74014-14
people I cared about. And I felt that he [Appellant] was telling
me the truth, that he wasn’t hurting me.” Soon after M.R. began
permitting Appellant to perform oral and vaginal sex on her and
she [began] performing oral sex on him, her mother found a
new job and Rick was released from prison, affirming for M.R.
that the “rituals” were successful and that she was doing the
right thing. M.R. believed that if she did not comply with
Appellant’s request for sex[,] bad things would happen to her
and her family.
When M.R. was 12 years old she confided in her girlfriends,
Complainant C.R., Complainant C.S., and her girlfriend T.L., and
she told them that she was performing Santeria rituals with
Appellant which consisted of engaging in oral and vaginal sex
with him. She had previously introduced her girlfriends to
Appellant as her uncle who the young girls knew was a Santero
in the Santeria religion.
* * *[2]
____________________________________________
2
A review of the certified transcripts reveals Appellant read
cards for C.R. and C.S. at M.R.’s house, and told them
about their futures. Appellant explained the girls could
perform the “ritual” with him to prevent bad things from
happening and to ensure good things would come their
way. C.R. corroborated M.R.’s description of the ritual and
explained she engaged in oral and vaginal sex with
Appellant approximately once a week from when she was
thirteen years old until she was fifteen years old. C.S. also
corroborated C.R.[’s] and M.R.’s descriptions of the ritual.
C.S. testified she engaged in oral sex with Appellant one
time, and vaginal sex with Appellant one time, but then
discontinued the ritual with Appellant because it felt
wrong. Thereafter, Appellant told M.R. the spirits were
going to be very angry at C.S. because she was not giving
them offerings.
____________________________________________
M.R. testified that Appellant provided financial assistance to T.L.
and her family and that he told T.L. that if she permitted him to
perform the ritual of oral and vaginal sex life would be better for
them. T.L., then age 12, agreed to perform the ritual, and in the
-3-
J-S74014-14
presence of M.R. and her girlfriends, … Appellant performed oral
and vaginal sex on her.
* * *[3]
____________________________________________
3
The girls developed a code with Appellant to discuss the
ritual. “Five” meant Appellant would perform oral sex on
them; “Seven” was vaginal sex; and “Eight” meant the
girls would perform oral sex on him.
____________________________________________
Complainants believed that Appellant told them things that were
going to happen in their lives and believed him when he insisted
that if they did not want those things to happen to them they
could perform the “ritual” and engage in oral and vaginal sex
with him and that their lives would be prosperous and happy.
At age 15, M.R. began having second thoughts about the sexual
rituals with Appellant and sought help from her boyfriend,
[Emmanuel Rodriguez], whose mother, Katherine Burgos, was a
Santeria. M.R. and [Rodriguez] learned from Burgos that sex
was not a required component of any religion, including
Santeria. Upon hearing this[,] M.R. cried to [Rodriguez] and told
him about what had occurred with Appellant. Later that day,
M.R. reported the incidents to [her mother] who immediately
called Appellant and demanded that he come to her home so
that they could talk. Appellant arrived with T.L. When
confronted, Appellant denied M.R.’s allegations. M.R.’s mother
then got into Appellant’s car, driving off with him and T.L. When
they returned nothing more was said about the incidents, and
Appellant left with T.L.
M.R. testified that initially her mother expressed remorse and
guilt that she had permitted this to happen. [M.R.’s mother] told
M.R. that she would take care of the situation, however, her
mother continued the close friendly relationship with Appellant.
Eventually, because of her mother’s inaction, M.R. reported the
incidents to a school teacher[,] who then reported to the school
counselor, and on May 16, 2008[,] the police [were] called.
Commonwealth v. Ayala, No. 986 EDA 2010, unpublished memorandum
at 2-5 (Pa. Super. filed December 28, 2011) (quoting Trial Court Opinion,
-4-
J-S74014-14
1/31/11, at 2-7) (internal citations and trial court footnote omitted;
footnotes added by this Court on direct appeal)).
Based on these facts, Appellant was arrested and proceeded to a jury
trial that commenced on June 22, 2009, and continued until July 9, 2009. At
the close thereof, the jury convicted Appellant of rape of a child, involuntary
deviate sexual intercourse (IDSI) with a child, aggravated indecent assault
of a child, criminal conspiracy to commit IDSI with a child, and three counts
each of statutory sexual assault, IDSI, unlawful contact with a minor, and
corruption of minors. Appellant was ultimately sentenced on April 14, 2010,
to an aggregate term of 22 to 44 years’ incarceration, followed by 20 years’
probation. Appellant timely appealed, and after this Court affirmed his
judgment of sentence, our Supreme Court denied his subsequent petition for
allowance of appeal. Commonwealth v. Ayala, 40 A.3d 204 (Pa. Super.
2011) (unpublished memorandum), appeal denied, 50 A.3d 124 (Pa. 2012).
On April 5, 2012, Appellant filed a timely, counseled PCRA petition
asserting numerous claims, most of which alleged the ineffective assistance
of his trial counsel. The Commonwealth filed a motion to dismiss Appellant’s
petition on February 27, 2013, to which Appellant filed a response on March
22, 2013. The Commonwealth filed a second motion to dismiss on May 22,
2013. On October 10, 2013, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition without a hearing.
Appellant did not file a response, and on December 3, 2013, the court issued
an order formally dismissing his PCRA petition. Appellant filed a timely
-5-
J-S74014-14
notice of appeal, as well as a timely, court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
Herein, Appellant presents the following issues for our review:
I. The PCRA court erred in dismissing without a hearing
Appellant’s claim that trial counsel rendered ineffective
assistance in failing to move to sever the co-defendant’s case
and for failing to appreciate the overwhelming amount of
prejudicial information that would be admitted (and was in fact
admitted) at this joint trial which would have been excluded at a
severed trial. In the alternative, trial counsel was ineffective for
failing to object to the admission of this evidence at this joint
trial[.]
II. The PCRA court erred in dismissing without a hearing
Appellant’s claim that trial counsel rendered ineffective
assistance in failing to object to testimony (1) that several
different authority figures concluded that complainant M.R.’s
accusations against Appellant were true and disbelieved her
recantations and (2) that the government’s official determination
was that the allegations were true, as this invaded the province
of the jury to decide the ultimate issue in the case and
improperly bolstered the veracity of the complainant[.]
III. The PCRA court erred in dismissing without a hearing
Appellant’s claim regarding the recantations of Commonwealth
witness M.R. that trial counsel rendered ineffective assistance in
failing to object to (A) the trial court’s failure to instruct the jury
that these prior inconsistent statements could be used as
substantive evidence or as impeachment; (B) the trial court’s
failure to identify what statements were inconsistent; (C) the
trial court’s error in failing to even properly characterize these
prior statements as “inconsistent”; and (D) the court’s
instruction allowing the jury to consider as substantive evidence
of guilt the many prior consistent statements of all of the
teenage complainants[.]
IV. The PCRA court erred in dismissing without a hearing
Appellant’s claim that trial counsel rendered ineffective
assistance in failing to object to the trial court’s erroneous
instruction prohibiting the jury from considering the delay in
reporting as one issue affecting the complainant’s credibility[.]
-6-
J-S74014-14
V. The PCRA court erred in dismissing without a hearing
Appellant’s claim that trial counsel rendered ineffective
assistance in failing to object to the trial court’s erroneous and
incomplete instruction on how the jury should consider
Appellant’s evidence of good character[.]
VI. The PCRA court erred in dismissing without a hearing
Appellant’s claim that trial counsel rendered ineffective
assistance in failing to object to the trial prosecutor’s wildly
improper impeachment of defense witnesses … [T.L.] [and
Tamara L., T.L.’s mother].
VII. The PCRA court erred in dismissing without a hearing
Appellant’s claim that trial counsel rendered ineffective
assistance in failing to impeach Commonwealth witness
Emmanuel Rodriguez with various aspects of his juvenile criminal
record[.]
VIII. Regarding the events in which the trial court prevented
Appellant from challenging the Commonwealth’s case through
the testimony of Homeland Security Agent Steven Galambos –
that Appellant had spent so much time in his company as a
government informant that it was unlikely he could have done
what the Commonwealth alleged – the PCRA court erred in
dismissing this claim on several distinct grounds[.]
Appellant’s Brief at i-ii.1
____________________________________________
1
While Appellant presents eight overarching issues, he actually proffers at
least 16 different claims for our review. Despite raising this multitude of
issues and sub-issues, Appellant’s counsel nevertheless complains that he
was forced to abandon four additional issues because this Court issued a per
curiam order denying his motion for leave to exceed the page limitations for
a principal brief. See Appellant’s Brief at 43 n.11; see also Superior Court
Order, 7/18/14. While counsel does not ask this Court for any type of relief
for his purportedly having to omit these additional claims, we nevertheless
take this opportunity to remind counsel,
of the observation by the Honorable Ruggero Aldisert, Senior
Circuit Judge of the United States Court of Appeals for the Third
Circuit, that this Court has previously cited in Kenis v. Perini
Corp., 452 Pa. Super. 634, 682 A.2d 845 (1996), as well as
other cases:
(Footnote Continued Next Page)
-7-
J-S74014-14
Before addressing each of Appellant’s issues in turn, we begin by
noting that, “[t]his Court’s standard of review from the grant or denial of
post-conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free
of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has stated that:
_______________________
(Footnote Continued)
When I read an appellant's brief that contains ten or
twelve points, a presumption arises that there is no merit
to any of them. I do not say that it is an irrebuttable
presumption, but it is a presumption that reduces the
effectiveness of appellate advocacy. Appellate advocacy is
measured by effectiveness, not loquaciousness.
Id. at 847 n. 3 (citations omitted); see also Commonwealth
v. Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) (“[T]he
effectiveness of appellate advocacy may suffer when counsel
raises numerous issues, to the point where a presumption arises
that there is no merit to any of them.”) (citations omitted).
J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 410 (Pa.
Super. 2012). We also find it curious that while counsel complains about our
declining him additional briefing space, he nevertheless includes – at the
start of the Argument portion of his brief – an unnecessary section entitled,
“Preliminary Statement on the Weakness of the Commonwealth’s Case.”
This 3½-page statement constitutes 1,200 of the 14,000 words permitted in
a principal brief, see Pa.R.A.P. 2135(a)(1), and belies counsel’s assertion in
his “Motion For Leave of Court to File Oversize Brief” that he “limited his
legal discussions to the bare essentials.” Appellant’s Motion, 6/26/14, at 2
(unpaginated).
-8-
J-S74014-14
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.”
Generally, counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
relief, a petitioner must demonstrate that counsel’s performance
was deficient and that the deficiency prejudiced the petitioner. 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.” … [A] properly pled claim of ineffectiveness
posits that: (1) the underlying legal issue has arguable merit;
(2) 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, 532-33 (Pa. 2009) (citations
omitted).
Trial Counsel’s Failure to Move for Severance
Appellant first argues that his trial counsel was ineffective for not filing
a pretrial motion to sever Appellant’s trial from that of his co-defendant,
Maria Alfaro (M.R.’s mother).2 Appellant contends that counsel’s failure to
seek severance resulted in prejudicial testimony being admitted against him.
He details that testimony in his brief, and explains why such evidence would
not have been admissible had his trial been severed from Alfaro’s. See
Appellant’s Brief at 13-17. Appellant maintains that trial counsel “should
____________________________________________
2
Trial counsel did move for severance during trial, following Alfaro’s cross-
examination of Police Officer Cheryl Monzo. See N.T. Trial, 6/29/09, at 160-
163. The trial court denied that motion. Id. at 163.
-9-
J-S74014-14
have moved for severance and supported his motion with argument that all
of this evidence was inadmissible as against [Appellant,] and prejudiced
[Appellant] even though the evidence may have been admissible against
[Alfaro].” Id. at 17. Appellant contends that because his counsel failed to
move for severance, he was ultimately “convicted with evidence that was
inadmissible under the rules of evidence.” Id.
The PCRA court concluded that our Court “considered the issue of
severance” on direct appeal and, as such, it was “previously litigated” under
42 Pa.C.S. § 9543(a)(3) (mandating that to be eligible for relief, petitioner
must prove that “[t]he allegation of error has not been previously litigated or
waived”). PCRA Court Opinion (PCO), 6/13/14, at 7.
The PCRA court is incorrect for several reasons. First, in Appellant’s
direct-appeal Rule 1925(b) statement, he asserted that the trial court erred
by denying his mid-trial motion to sever. While the trial court addressed
that claim in its January 31, 2011 opinion, see Trial Court Opinion, 1/31/11,
at 7-8, Appellant ultimately abandoned the issue in his brief to this Court.
Consequently, there is no mention of severance in this Court’s decision
affirming Appellant’s judgment of sentence. See Ayala, No. 986 EDA 2010.
Moreover, even if this Court had addressed on direct appeal
Appellant’s challenge to the trial court’s denial of his mid-trial motion to
sever, that claim is clearly distinct from Appellant’s present claim alleging
that trial counsel acted ineffectively by not filing a pretrial motion to sever.
Moreover,
- 10 -
J-S74014-14
[a]s the Supreme Court of Pennsylvania has opined in
Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564 (2005),
post[-]conviction relief claims alleging that counsel had provided
ineffective assistance are generally to be considered distinct
from the underlying claims that the trial court erred, even
though such underlying claims of error had been litigated on
direct appeal. Id. at 58, 888 A.2d at 571–572.
Commonwealth v. Kimbrough, 938 A.2d 447, 451 (Pa. Super. 2007)
(emphasis added).
In sum, it is clear that this Court has not ruled on the merits of
Appellant’s claim that trial counsel acted ineffectively by not filing a pretrial
motion to sever his case from Alfaro’s. Consequently, the PCRA court erred
in deeming this issue previously litigated. See 42 Pa.C.S. § 9544(a)(2)
(stating that an issue is previously litigated if “the highest appellate court in
which the petitioner could have had review as a matter of right has ruled on
the merits of the issue”).3 Because the PCRA court did not consider the
merits of this ineffectiveness claim, we are compelled to vacate the court’s
order denying Appellant’s petition and remand for further consideration of
this issue. See Commonwealth v. Jones, 932 A.2d 179, 183 (Pa. Super.
2007) (vacating the order denying the PCRA petition and remanding “for
consideration of [the] [a]ppellant’s post-conviction claims” where the PCRA
____________________________________________
3
It is also apparent that Appellant did not waive this trial counsel
ineffectiveness claim by not raising it on direct appeal. See
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (holding that “as
a general rule, a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review”).
- 11 -
J-S74014-14
court incorrectly deemed the appellant’s issues previously litigated and did
not consider the merits thereof).
Trial Counsel’s Failure to Object to Certain Testimony
In Appellant’s second issue, he contends that trial counsel acted
ineffectively by not objecting to certain testimony by M.R. and three other
Commonwealth witnesses. Appellant describes the at-issue testimony as
follows:
M.R. testified that Police Officer Monzo, an officer trained
and experienced in sexual assault investigations, believed M.R.
when she said that [A]ppellant raped her and disbelieved her
when she said that he had not raped her. [N.T. 6/24/09, 185]
Trial counsel did not object.
Suzanne Strange, the guidance counselor at M.R.’s school,
testified that she did not believe M.R. when [M.R.] said that …
[A]ppellant had not raped her. [N.T. 6/26/09, 56] Trial counsel
did not object.
Police Officer Monzo testified that M.R. said that none of
the individuals to whom she recanted – [Department of Human
Services (DHS)] social worker Michelle Ludwig, Ms. Strange[,]
the guidance counselor, M.R.’s friend [Emmanuel] Rodriguez or
[Rodriguez’s] mother[,] Katherine Burgos – believed her
recantations. [N.T. 6/29/09, 58] Trial counsel did not object.
DHS social worker Michelle Ludwig testified that after
investigation her office determined that “the allegations [against
[A]ppellant] were indicated, and they were found to be true.”
[N.T. 6/30/09, 79] Trial counsel did not object.
Appellant’s Brief at 18-19.
After setting forth this testimony, Appellant then avers it was
improperly admitted, stating:
The ultimate issue the jury was asked to decide was
whether M.R.’s allegations against [A]ppellant were true or, as
- 12 -
J-S74014-14
the defense argued, whether her recantations created a
reasonable doubt sufficient to acquit. Her credibility was the
central issue this jury considered. The testimony of these
witnesses invaded this province of the jury by addressing and
then answering that ultimate issue. This was clear error. See
Commonwealth v. Davis, 650 A.2d 452, 460-61 (Pa. Super.
1994) (comments on witness credibility are impermissible);
Commonwealth v. Loner, 609 A.2d 1376, 1377 (Pa. Super.
1992) (conviction vacated and new trial granted where children’s
services caseworker in child sexual assault case testified that she
believed the victim; “testimony … which serves to bolster the
veracity of the child sexual abuse victim impermissibly infringes
upon the province of the jury”).
Id. at 19.
Appellant also maintains that because the testimony set forth above
was so clearly improper, trial counsel could have had no reasonable basis for
failing to object. Id. at 20. In regard to whether he suffered prejudice from
counsel’s purported error, Appellant states:
[I]t is a very big deal when a jury is permitted to learn that five
different witnesses of the caliber presented here – including the
assigned sex crimes officer, a respected school counselor with
experience in these matters, a trained DHS social worker who
has seen it all, and the mother of the girl’s boyfriend who might
otherwise be skeptical of such a claim and who was described as
a sort of substitute guardian and authority figure to M.R. – all
voiced their opinions after hearing her story that she had in fact
been raped. This was not one isolated, off-the-cuff remark by
one lay witness followed immediately by a definitive curative
instruction. No curative instruction was requested or given, and
the vouching for M.R.’s credibility by such authoritative figures
was repeated often.
Id. at 20-21.
In rejecting this claim, the PCRA court reasoned:
The Commonwealth presented the evidence [of testimony
by] law enforcement, a social worker, and a physician, as well as
other fact witnesses to testify to the events in which they
- 13 -
J-S74014-14
participated in the investigation of the instant case. The
Commonwealth, moreover, presented the testimony of three
other minor females whose testimony corroborated the
testimony of MR. The testimony presented was relevant and
admissible and was more than sufficient to sustain the jury’s
verdict of Appellant’s guilt. The court instructed the jury that it
is the jury’s function to decide the facts and the jury is presumed
to have followed the Court’s instructions. Appellant fails to
demonstrate prejudice, i.e., that but for the alleged omission of
trial counsel the outcome of the proceedings would have been
different.
PCO at 7-8.
We ascertain no error in the PCRA court’s conclusion that Appellant
failed to demonstrate prejudice. As our Supreme Court recently reiterated:
Respecting prejudice, we employ the Strickland[4] actual
prejudice test, which requires a showing of a reasonable
probability that the outcome of the proceeding would have been
different but for counsel's constitutionally deficient performance.
See, e.g., Strickland, 466 U.S. at 694, 104 S. Ct. 2052;
Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108
(2012). “[A] reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, ––– Pa. ––––, 84 A.3d
294, 312 (2014) (citations omitted); see also Hinton v.
Alabama, ––– U.S. ––––, 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1
(2014) (“When a defendant challenges a conviction, the question
is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.”) (quotation marks omitted); Strickland, 466
U.S. at 695, 104 S. Ct. 2052 (explaining same concept in context
of penalty relief). A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim.
Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1076
(2006).
____________________________________________
4
Strickland v. Washington, 466 U.S. 668 (1984).
- 14 -
J-S74014-14
Commonwealth v. Daniels, 2014 WL 5505024, at *6-7 (Pa. October 30,
2014).
Here, Appellant has not convinced us that but for counsel’s failure to
object to the above-cited testimony, it is reasonable to believe the jury’s
verdict would have been different. Appellant’s argument would be much
stronger if M.R. were the only victim who accused Appellant in this case.
However, he completely disregards that M.R.’s claims of abuse were
corroborated by two other young women, C.R. and C.S. All three teenagers
provided consistent testimony regarding the manipulation techniques utilized
by Appellant to convince them to engage in sexual acts with him; the
sequence of events that would occur before, during, and after Appellant’s
performing these sexual ‘rituals’ on them; and the number codes assigned to
each type of sexual act.5 Appellant does not explain why the jury would
have disregarded M.R.’s, C.S.’s, and C.R.’s testimony and reached a different
verdict had Appellant’s counsel objected to the ostensibly improper
testimony regarding M.R.’s credibility. Accordingly, the PCRA court did not
err in concluding that Appellant failed to prove he was prejudiced by
counsel’s failure to object to the at-issue testimony.
Trial Counsel’s Failure to Object to Certain Jury Instructions
____________________________________________
5
The Commonwealth provides a succinct summary of the consistencies
between the three victims’ allegations against Appellant. See
Commonwealth’s Brief at 20-22. The Commonwealth’s summation of the
victims’ testimony at trial is supported by our review of the record.
- 15 -
J-S74014-14
In Appellant’s next three issues (III, IV, and V), he contends that
counsel was ineffective for failing to object to various portions of the trial
court’s jury instructions. The record as it currently stands supports
Appellant’s claims that the court provided legally incorrect jury instructions.6
However, according to the PCRA court and the Commonwealth, the notes of
testimony of the jury instructions “were incorrectly transcribed.” See PCO at
9-11; Commonwealth’s Brief at 36, 39, 41.
As proof of this fact, the PCRA court explains that it read the jury
charge from the Pennsylvania Standard Criminal Jury Instructions (PSCJI),
which the parties agreed was appropriate during the charging conference.
See PCO at 9-11. Accordingly, the PCRA court concludes that any
discrepancies between the PSCJI and the actual transcription of the
instructions provided in this case are simply transcription errors made by the
____________________________________________
6
See Appellant’s Brief at 22 (citing N.T. Trial, 7/9/09, at 42 (court’s
instructing jury regarding M.R.’s prior inconsistent statements, but stating
“[y]ou have heard evidence that was made of a statement on an earlier
occasion that was consistent with the presented testimony” and directing
jury that it could consider these prior consistent statements “as proof of the
truth of anything that the witness said in the earlier statement”) (emphasis
added)); Appellant’s Brief at 26-27 (citing N.T. Trial, 7/9/09, at 43 (court’s
instructing jury that the complainants’ “delay in making a complaint should
be considered in no way as devaluing their testimony”) (emphasis added));
Appellant’s Brief at 31 (citing N.T. Trial, 7/9/09, at 45 (court’s instructing
jury that Appellant proffered character testimony “as to [Appellant’s] having
a good representation for being a law abiding and peaceable individual” and
that “[e]vidence of good character by itself raises a reasonable amount of
guilt and require[s] a verdict of not guilty”) (emphasis added)).
- 16 -
J-S74014-14
court reporter. Because the “the suggested standard jury instruction [were]
in fact given[,]” the PCRA court concludes that trial counsel cannot “be
deemed ineffective for failing to object to” those instructions. Id. at 10.
The Commonwealth argues that we are bound by the PCRA court’s factual
finding that the at-issue portions of the jury instructions are simply
transcription errors. See Commonwealth’s Brief at 34. In support, the
Commonwealth relies on Commonwealth v. Abu-Jamal, 720 A.2d 79
(1998), and Commonwealth v. Jones, 596 A.2d 885 (Pa. Super. 1991).
However, both of those cases direct that we are bound to accept the
PCRA court’s credibility determinations and factual findings where “there is
record support” for those findings. Abu-Jamal, 720 A.2d at 93 (“Where …
there is record support for a PCRA court’s credibility determinations, we, as
a reviewing court, are bound by those determinations”) (emphasis added);
see also Jones, 596 A.2d at 887 (“The findings of the PCRA court will not
be disturbed unless they have no support in the record.”) (emphasis added).
Here, nothing in the record before us supports the PCRA court’s conclusion
that the jury instructions were incorrectly transcribed. Therefore, we
disagree with the Commonwealth that those findings are binding on appeal.
Instead, we conclude that remand is appropriate for the PCRA court
and the parties to address this issue under Pa.R.A.P. 1922 and 1926. Rule
1922 provides, in pertinent part:
(a) General rule. Upon receipt of the order for transcript and
any required deposit to secure the payment of transcript fees the
official court reporter shall proceed to have his notes transcribed,
- 17 -
J-S74014-14
and not later than 14 days after receipt of such order and any
required deposit shall lodge the transcript (with proof of service
of notice of such lodgment on all parties to the matter) with the
clerk of the trial court. Such notice by the court reporter shall
state that if no objections are made to the text of the transcript
within five days after such notice, the transcript will become a
part of the record. If objections are made the difference shall be
submitted to and settled by the trial court. The trial court or the
appellate court may on application or upon its own motion
shorten the time prescribed in this subdivision.
…
(c) Certification and filing. The trial judge shall examine any
part of the transcript as to which an objection is made pursuant
to Subdivision (a) of this rule or which contains the charge to
the jury in a criminal proceeding, and may examine any
other part of the transcript, and after such examination and
notice to the parties and opportunity for objection (unless
previously given) shall correct such transcript. If the trial
judge examines any portion of the transcript, he shall certify
thereon, by reference to the page and line numbers or the
equivalent, which portions thereof he has read and corrected. If
no objections are filed to the transcript as lodged, or after any
differences have been settled or other corrections have been
made by the court, the official court reporter shall certify the
transcript, and cause it to be filed with the clerk of the lower
court.
Pa.R.A.P. 1922(a), (c) (emphasis added). Additionally, Rule 1926(a) states:
(a) If any difference arises as to whether the record truly
discloses what occurred in the trial court, the difference shall be
submitted to and settled by that court after notice to the
parties and opportunity for objection, and the record made
to conform to the truth.
Pa.R.A.P. 1926(a) (emphasis added).
Here, while the PCRA court’s opinion has notified the parties of the
purported errors in the transcript, they have not been provided an
opportunity to object to the court’s recollection of the jury instructions
- 18 -
J-S74014-14
actually provided. Additionally, the PCRA court has not corrected those
errors and transmitted a supplemental record to this Court. Consequently,
we direct that a hearing on these ostensible transcription errors is
necessary, after which the court can correct any clerical errors, create a
supplemental record, and reassess whether that record supports Appellant’s
claim that trial counsel acted ineffectively by failing to object to the portions
of the jury instructions challenged in his petition. See Commonwealth v.
McDonald, 428 A.2d 174, 174-175 (Pa. Super. 1981) (affirming the PCRA
court’s proceeding under Rule 1926 to correct an omission in the record,
pursuant to which the PCRA court held a hearing and accepted testimony
from the court reporter, as well as evidence of a recording of the trial
testimony); see also Cook v. Smith, 812 F. Supp. 561, 563 (E.D.Pa. 1993)
(stating that Rules 1922 and 1926 “set forth the proper procedures that
must be followed in order to correct alleged discrepancies in the record”).
Trial Counsel’s Failure to Object to Cross-Examination of
Defense Witnesses
In Appellant’s sixth issue, he avers that trial counsel acted ineffectively
by not objecting to the Commonwealth’s “wildly improper impeachment of
defense witnesses Tamara [L.] and [T.L.]” Appellant’s Brief at 33. While
Appellant claims to object to testimony elicited from both T.L. and Tamara
L., he only cites and discusses testimony by Tamara L. See Appellant’s Brief
at 33-34. Appellant describes the purportedly improper testimony as
follows:
- 19 -
J-S74014-14
On cross-examination of Tamara [L.], the trial prosecutor
elicited evidence that [T.L.] had many “illegal school absences”
(and that Tamara [L.] had to go to Truancy Court), talked back
to teachers, “ran the hallways[,”] and had been suspended three
times from school – once for fighting, once for “endangering and
ignoring health and safety[,”] and once for “using vulgar and
ineffective language[.”]
Appellant’s Brief at 33-34 (citations to the record omitted). Appellant
maintains that this testimony was inadmissible because it was irrelevant and
unduly prejudicial. He also argues that Tamara L.’s testimony revealed
inadmissible ‘prior bad acts’ of T.L. Thus, he contends that his defense
counsel was ineffective for not objecting to this testimony.
After careful review, we disagree. By way of background, T.L. testified
for the defense, and stated on direct-examination that M.R. told her that
Appellant “had raped [M.R.,]” and that M.R. “wanted [T.L.], [C.S.] and
[C.R.] to go [along] with her story.” N.T. Trial, 7/6/09, at 61. T.L. testified
that she told M.R. that she “wasn’t going to be involved[,]” after which she
and M.R. “stopped talking.” Id. at 62. At one point during the direct-
examination of T.L, defense counsel asked T.L. about her being injured in a
car accident.7 Id. at 65. T.L. claimed the accident occurred in March of
2007, and that as a result, she did not attend school for approximately “two
or three months….” Id. at 65-67.
____________________________________________
7
It appears that the relevancy of the date on which T.L.’s car accident
occurred was to establish that in 2006, T.L. was living with her aunt, whose
residence was next door to M.R.’s home. See N.T. Trial, 7/6/09, at 124-
127; 152-153. T.L. moved in with her mother, Tamara L., shortly before her
car accident. Id. at 122.
- 20 -
J-S74014-14
Tamara L. took the stand after T.L. Tamara also testified that she
“was certain” T.L. was injured in a car accident in March of 2007. Id. at
120, 124. Tamara stated that prior to the accident, T.L. was living with
Tamara’s sister. Id. at 121. T.L. moved in with Tamara “[s]ometime in
February of 2007.” Id. On cross-examination, the Commonwealth
questioned Tamara as follows:
[The Commonwealth]: When [T.L.] was staying at [her aunt’s]
house, how often did you see her?
[Tamara]: All the time.
…
[The Commonwealth]: How did [T.L.] get … to school?
[Tamara]: I would drive her or my sister would drive her.
[The Commonwealth]: Are you aware that [T.L.] missed a
significant number of days of school in fall of 2006…?
[Tamara]: It was all due to her car accident.
[The Commonwealth]: This is before the car accident I’m talking
about?
[Tamara]: Oh, I don’t know how because the only absences that
she had – I don’t have any idea where that came from.
[The Commonwealth]: So I have a copy [of school records] in
front of me.
…
Ma’am, you probably have not seen this before?
[Tamara]: I’ve seen [it].
[The Commonwealth]: You’ve seen it?
[Tamara]: Yeah, I went to school to straighten that out.
- 21 -
J-S74014-14
[The Commonwealth]: Look here, 2006 and 2007. Do you see
how there is a whole bunch of dates listed there.
[Tamara]: Yes.
[The Commonwealth]: And then there are some codes after
those dates?
[Tamara]: Yes.
[The Commonwealth]: Do you agree with me that in 2006 and
2007, it says that [T.L.] was illegally absent on September 21st,
[September] 22nd, September 25th, September 27th, October 4th
– do you agree with me so far?
[Tamara]: Yes.
[The Commonwealth]: And then she was late a couple of days
after that. It looks like it was a lot [of] excused absences,
meaning that she had permission…?
…
[Tamara]: Yes.
[The Commonwealth]: It also said that she’s suspended for two
days; correct?
[Tamara]: Yes.
[The Commonwealth]: It said that she got suspended three
times for fights?
[Tamara]: No, not fighting.
[The Commonwealth]: Not fighting[.]
[Tamara]: Not fighting.
[The Commonwealth]: Why was she suspended?
[Tamara]: Mainly because of running in the hallways or may be
[sic] talking back to the teacher. I know that I’ve had problems
with her fighting in school.
[The Commonwealth]: If you look a little further down there and
it says suspension and then it gives the reason.
[Tamara]: Okay.
- 22 -
J-S74014-14
[The Commonwealth]: One says endangering and ignores health
and safety and the third one is prohibition of fighting, mutual
confrontation of all physical contact?
[Tamara]: About the fighting, I never had no problems with her
for no fighting. But yeah, her talking back and all that, yeah. I
had one incident with one teacher.
[The Commonwealth]: So then continuing back to the dates [we
are] looking at – we’re not going through every single date.
You’d agree with me that – I’m talking before March, before she
had her accident that it was a significant number of incidents?
[Tamara]: Yes.
[The Commonwealth]: You see that it’s January 2nd, illegal,
January 3rd, illegal, January 4th, illegal, and then it’s nothing
marked again until March?
[Tamara]: I don’t know.
[The Commonwealth]: And were you aware at the time in the
fall of 2006, … that she had missed that many days?
[Tamara]: No, because I had been to the school like I said. I
had to go to Truancy Court, in which they suspended that. They
sent me a letter. I did not have to show up after I called
because – well, the school never showed me this. This is the
first time I’ve seen this.
Id. at 154-157.
After reviewing this portion of the Commonwealth’s cross-examination,
we disagree with Appellant that the cross-examination was improper. The
Commonwealth’s question about T.L.’s missing “a significant number of
school” was asked to impeach Tamara’s testimony that she saw T.L. “all the
time” and drove her to school. Id. at 154. When Tamara then stated that
T.L. missed school due to her accident, the Commonwealth permissibly
impeached her with evidence that T.L. missed many days of school before
- 23 -
J-S74014-14
her accident occurred. Id. at 155-156. During that line of questioning, the
Commonwealth mentioned that T.L. missed two days of school because she
was suspended for fighting, which Tamara disputed. Id. at 156. The
Commonwealth was then allowed to ask Tamara why T.L. was suspended,
and to also point out to Tamara that the school’s records indicated T.L. was
suspended for fighting. Id. at 156-157.
In sum, we ascertain no error in the PCRA court’s determination that
the Commonwealth’s cross-examination of Tamara was permissible to
impeach her testimony and, therefore, defense counsel did not err in failing
to object. See PCO at 14 (citing Commonwealth v. Chmiel, 889 A.2d
501, 527 (Pa. 2005) (“Cross-examination may be employed to test a
witness’ story, to impeach credibility, and to establish a witness’ motive for
testifying.”). Moreover, we also note that Appellant makes no argument
that but for counsel’s failure to object to the above-quoted testimony, the
outcome of his trial would have been different. Accordingly, even if the
Commonwealth’s cross-examination was improper, Appellant has not
demonstrated that he was prejudiced by counsel’s omitted objections.
Trial Counsel’s Failure to Impeach Emmanuel Rodriguez
Appellant next argues that his attorney acted ineffectively by not
impeaching M.R.’s boyfriend, Emmanuel Rodriguez, with evidence that he
had non-final criminal dispositions pending at the time he provided a
statement to police in May of 2008, and at the time he testified for the
Commonwealth at Appellant’s trial in June of 2009. Appellant explains that
- 24 -
J-S74014-14
“Rodriguez testified for the Commonwealth that he was M.R.’s boyfriend,
that she confided in him that [A]ppellant sexually abused her, that he
corroborated her reasons for recanting, and that she had a sad demeanor as
a result of her victimization.” Appellant’s Brief at 36. Appellant maintains
because Rodriguez was an “important Commonwealth witness,” trial counsel
acted ineffectively by not impeaching him with his allegedly non-final
criminal dispositions that were pending at the time he testified.
In rejecting this claim, the PCRA court concluded, inter alia, that
Appellant did not demonstrate he was prejudiced by counsel’s failure to
impeach Rodriguez in this regard. The court stated: “Viewed in light of other
overwhelming[,] credible[,] and sufficient evidence presented by the
Commonwealth which supports the jury’s guilty verdict, [Rodriguez’s]
testimony is minimal, and it is clear that the prejudice prong of the
[ineffectiveness] test is not established.” PCO at 14.
We agree. In terms of how counsel’s failure to impeach Rodriguez
prejudiced him, Appellant simply states:
Where M.R. herself repeatedly recanted her accusations to
a large number of different people, admitted that she lied, tried
to enlist [T.L.] in her scheme to frame [A]ppellant, and the
complainants’ versions had so many internal inconsistencies, and
where Mr. Rodriguez was such a significant witness, it clearly
prejudiced [A]ppellant’s right to a fair trial when counsel failed to
impeach this witness with his abundant criminal record.
Id. at 38-39. This argument is not sufficient to convince us that the jury’s
verdict hinged on the testimony of Rodriguez and that, had counsel
impeached this witness, there is a reasonable likelihood the verdict would
- 25 -
J-S74014-14
have been different. Again, the jury heard the testimony of M.R., C.S., and
C.R. detailing years of abuse by Appellant. M.R. did not confide solely in
Rodriguez about this abuse. The Commonwealth presented testimony by
law enforcement, a school counselor, and a DHS worker, who all testified
that M.R. reported Appellant’s abuse to them, as well. Consequently, we
ascertain no error in the PCRA court’s conclusion that Appellant failed to
prove he was prejudiced by counsel’s failure to impeach Rodriguez with his
allegedly non-final criminal dispositions.
Testimony of Steven Galambos
In his final issue, Appellant raises three sub-claims involving the
court’s preclusion of certain testimony by defense witness Steven Galambos,
an agent for the Immigration and Customs Enforcement (ICE) Office of the
United States Department of Homeland Security. First, Appellant claims that
his trial counsel provided an inadequate offer of proof regarding the agent’s
proposed testimony. Appellant explains his argument as follows:
The Commonwealth alleged that [A]ppellant had unlawful
sexual contact with M.R. alone twice a week for six years, which
amounts to something like 650 sexual encounters. M.R. herself
testified that he had sex with her “almost every day” for six
years. The Commonwealth was unable to establish dates when
any of this conduct took place.
To undercut the credibility of this testimony, [A]ppellant
called [Agent] Galambos … to testify for two purposes: (1) that
[A]ppellant was an accountant who served as an informant for
ICE and that Agent Galambos had such frequent, long-lasting
and unannounced sudden contact with [A]ppellant in that
capacity that it was unlikely he had the free time or flexibility of
schedule to do what M.R. alleged; and (2) that [A]ppellant
enjoyed a good reputation for law-abidingness and peacefulness.
- 26 -
J-S74014-14
A careful reading of the trial transcript reveals that the trial court
did not understand the first purpose for which this evidence was
offered, as the court repeatedly made statements and rulings
that reflected her mistaken belief that Agent Galambos was
being offered solely as a character witness. For that reason[,]
trial counsel was ineffective for failing to clearly support his
proffer with the proper arguments [as to] why this evidence was
critical to the defense and entirely admissible. This evidence,
while circumstantial and somewhat imprecise itself, nonetheless
undercut the Commonwealth’s case by showing how unlikely
M.R.’s version of events was.
Appellant’s Brief at 41.
Appellant’s claim of ineffectiveness lacks merit for several reasons.
First, at trial, counsel made the following offer of proof regarding Agent
Galambos’ testimony:
[Defense Counsel]: The offer of proof would be that [Agent
Galambos and Appellant] had this specific working relationship
and as a result of this working relationship, there never was any
time for [Appellant] to be available to do the types of things that
have been alleged in this courtroom.
…
For the record, Your Honor, [Appellant] worked with Agent
Galambos since early 2004, in a confidential informant capacity.
Agent Galambos would have testified that [Appellant] was
at [Agent] Galambos’ beck and call, and that generally, there
was no way for [Appellant] to know in advance when it was that
he and [Agent] Galambos were going to have to go out and do
things relative to their work or his work as a confidential
informant.
Agent Galambos would have also testified that at no time
did [Appellant] ever go out and do things on his own. If
whenever he was out working in this confidential informant
capacity, it was always in the company of Agent Galambos.
N.T. Trial, 7/6/09, at 37-38.
- 27 -
J-S74014-14
Appellant does not explain how this offer of proof could have been any
clearer regarding the defense’s purpose for calling Agent Galambos.
Moreover, while Appellant claims that counsel should have “support[ed] his
proffer with the proper arguments [as to] why this evidence was critical to
the defense and entirely admissible[,]” he fails to elaborate on what those
arguments should have been. Appellant’s Brief at 41. Additionally, the
record does not support Appellant’s claim that the trial court misunderstood
his dual purpose for calling the agent. After hearing the above-quoted offer
of proof from defense counsel, the trial court stated that it would not permit
such testimony by Agent Galambos. Id. at 38. It was only after this ruling
that the trial court began referring to the agent as a character witness,
which was precisely what the agent was at that point (given that his quasi-
alibi testimony was precluded). Id. at 39. Accordingly, Appellant has failed
to prove that counsel acted ineffectively in his offer of proof regarding Agent
Galambos’ testimony.8
Second, Appellant contends that his appellate counsel acted
ineffectively for not arguing on direct appeal “the separate and distinct claim
that the trial court erred in prohibiting Agent Galambos from establishing
____________________________________________
8
Appellant also argues that trial counsel acted ineffectively by failing to file a
post-verdict motion to challenge the court’s misunderstanding of his reason
for offering the testimony of Agent Galambos. Appellant’s Brief at 41. This
argument fails for the same reasons as stated, supra.
- 28 -
J-S74014-14
how he knew [A]ppellant in order to support the character evidence.”
Appellant’s Brief at 41. On direct appeal, counsel did challenge the court’s
preclusion of Agent Galambos’ quasi-alibi testimony, but he did not contend
that the court’s preclusion order also improperly limited the scope of the
character testimony proffered by the agent. Appellant claims that appellate
counsel should have argued that the trial court erred by not allowing the
agent to offer character testimony that he “worked with [Appellant] and
other law enforcement officers day in and day out for years and would not
have relied on [Appellant] as an informant unless he had a solid reputation
in the law enforcement community[.]” Appellant’s Brief at 41-42.
Appellant cites no legal authority to support his claim that the trial
court erred in excluding this testimony, and we conclude that the court did
not abuse its discretion in this regard. Our Court has explained
Evidence of good character offered by a defendant in
a criminal prosecution must be limited to his general
reputation for the particular trait or traits of
character involved in the commission of the crime
charged. The cross-examination of such witnesses by the
Commonwealth must be limited to the same traits. Such
evidence must relate to a period at or about the time the
offense was committed, and must be established by
testimony of witnesses as to the community opinion
of the individual in question, not through specific
acts or mere rumor.
Commonwealth v. Johnson, 27 A.3d 244, 247-248 (Pa. Super. 2011)
(quoting Commonwealth v. Luther, 463 A.2d 1073, 1077–1078 (Pa.
Super. 1983) (citations omitted) (emphasis added)).
- 29 -
J-S74014-14
Here, Appellant does not explain how Agent Galambos’ testimony that
Appellant had a “solid reputation” in the law enforcement community, based
on Appellant’s “day in and day out” work with the agent, would have been
admissible evidence of Appellant’s general reputation in the community for a
particular trait or traits of character involved in the commission of the crimes
charged. Moreover, at trial, the agent was permitted to testify that he was a
“Senior Special Agent with the Department of Homeland Security
Immigration and Customs Enforcement” and that he had worked with
Appellant “[s]ince January of 2004.” N.T. Trial, 7/6/09, at 40-42. Agent
Galambos also testified that he, and other people who knew Appellant “[a]s
a result of working with [Appellant],” considered Appellant as “a law abiding”
and “hard working” citizen. Id. Because the trial court permitted such
testimony from Agent Galambos, and Appellant offers no legal authority
supporting his claim that the court should have also allowed the proposed
testimony discussed supra, we conclude that appellate counsel was not
ineffective for failing to challenge on direct appeal the scope of character
evidence permitted by the trial court.
Finally, Appellant argues that this Court should reexamine our holding
on direct appeal, where we declined to disturb the trial court’s decision to
preclude Agent Galambos’ quasi-alibi testimony. See Appellant’s Brief at
42; see also Ayala, No. 986 EDA 2010, at 16-17. Essentially, Appellant
complains that the direct appeal panel of this Court summarily affirmed the
trial court’s preclusion of Agent Galambos’ testimony simply because it was
- 30 -
J-S74014-14
not “a true alibi defense[,]” without addressing “any of [A]ppellant’s
arguments.” Appellant’s Brief at 42. Appellant then contends that this Court
should “exercise its inherent authority to correct manifest errors in the
interests of justice by revisiting the claim that the trial court’s preclusion
order violated [A]ppellant’s federal and state due process right to present a
defense, as [A]ppellant briefed the claim on direct appeal.” Id. at 43.
We decline Appellant’s invitation to reassess this previously litigated
issue. Namely, Appellant’s argument that this Court should reevaluate our
direct appeal decision is not cognizable under the PCRA. Moreover, our
Supreme Court “has long recognized that under the coordinate jurisdiction
rule, judges of coordinate jurisdiction sitting in the same case should not
overrule each other’s decisions.” Riccio v. American Republic Ins. Co.,
705 A.2d 422, 425 (Pa. 1997). Accordingly, we will not revisit the prior
decision by a panel of this Court.
Conclusion
For the reasons stated infra, we vacate the PCRA court’s order denying
Appellant’s petition and remand for the court (1) to reconsider Appellant’s
first claim of trial counsel’s ineffectiveness (involving counsel’s failure to file
a pretrial motion to sever Appellant’s and Alfaro’s cases), and (2) to conduct
a hearing to address and correct the ostensible transcription errors in the
jury instructions, after which the court shall reassess Appellant’s claims that
trial counsel acted ineffectively by not objecting to certain portions of those
- 31 -
J-S74014-14
instructions. In regard to Appellant’s remaining claims, we ascertain no
error in the PCRA court’s dismissing them without a hearing.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge Donohue joins this memorandum.
Judge Strassburger files a concurring memorandum in which President
Judge Emeritus and Judge Donohue concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
- 32 -