Com. v. Morales, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MATHEW STEFAN MORALES, :
:
Appellant : No. 1143 MDA 2018
Appeal from the PCRA Order Entered June 19, 2018
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001430-2015
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 31, 2019
Mathew Stefan Morales (“Morales”) appeals from the Order denying his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On February 8, 2016, a jury found Morales guilty of first-degree murder
for the shooting death of Xavier Garriga (“the victim”), following an argument
in a Turkey Hill store. See 18 Pa.C.S.A. § 2502(a). The trial court sentenced
Morales to a mandatory term of life in prison without the possibility of parole.
Morales filed a post-sentence Motion, which the trial court denied. After
Morales filed an untimely Notice of Appeal, he filed a counseled Motion to
Reinstate Appellate Rights Nunc Pro Tunc, which the PCRA court granted. This
Court affirmed Morales’s judgment of sentence on May 11, 2017. See
Commonwealth v. Morales, 170 A.3d 1207 (Pa. Super. 2017) (unpublished
memorandum).
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On July 5, 2017, Morales, pro se, filed the instant timely PCRA Petition.
The PCRA court appointed Morales counsel, who filed an Amended Petition on
his behalf. The Commonwealth filed an Answer. The PCRA court conducted
an evidentiary hearing on March 8, 2018, after which both parties submitted
briefs. On June 19, 2018, the PCRA court denied Morales’s Petition. Morales
filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal.
On appeal, Morales raises the following claims for our review:
A. Whether trial counsel was ineffective when he failed to object
when the prosecutor introduced evidence that [Morales] had a
tattoo stating “Respect Few Fear None[,]” and cited those words
in his closing argument[,] which comments were inflammatory
and unduly prejudicial?
B. Whether trial counsel was ineffective when he failed to file a
meritorious motion to suppress various items[,] which were seized
pursuant to a search warrant[,] when the affidavit for said warrant
failed to set forth probable cause to believe that items subject to
seizure would be found in the place to be searched?
C. Whether trial counsel was ineffective when he failed to call
Frank Costanzo [(“Costanzo”)] as an expert witness at trial[,]
when [] Costanzo was ready, willing and able to testify that the
analysis performed by the Commonwealth’s expert, Sergeant
[Jeffrey] Jones [(“Sgt. Jones”)], was flawed[,] and that there was
insufficient evidence to determine the location of [Morales’s]
vehicle at the time the victim was shot?
D. Whether trial counsel was ineffective when he failed to object
to the testimony of Detective [John Wettlaufer] [(“Detective
Wettlaufer”)] concerning the use of trajectory rods[,] when
Detective Wetlauffer was not properly qualified as an expert
witness?
Brief for Appellant at 4 (issues reordered).
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Morales’s claims challenge the effectiveness of his trial counsel. The
applicable standards of review regarding the dismissal of a PCRA petition and
ineffectiveness claims are as follows:
Our standard of review of a PCRA court’s denial of a petition
for post[-]conviction relief is well-settled: We must examine
whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
***
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA petition pleads
and proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
omitted).
In his first claim, Morales asserts that trial counsel was ineffective for
failing to object to the admission of evidence that Morales has a tattoo reading
“Respect Few Fear None.” Brief for Appellant at 22. Morales contends that
the language of his tattoo has no probative value, but was instead an attempt
by the Commonwealth to create an inference that Morales had violent
propensities. Id. at 23. Additionally, Morales points out that the prosecutor
referred to the language of the tattoo again during closing arguments, which,
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Morales asserts, was an attempt to inflame the passions of the jury. Id. at
23-24. Morales claims that trial counsel failed to articulate a reasonable basis
for his failure to object to evidence of the tattoo. Id. at 24-25. Additionally,
Morales argues that he was prejudiced as a result of counsel’s inaction
because the prosecutor essentially asked the jury to render a verdict based
on emotion. Id. at 25.
In its Opinion, the PCRA court set forth the relevant law, addressed
Morales’s claim, and concluded that it lacks merit. See PCRA Court Opinion,
9/7/18, at 5-12. Specifically, the PCRA court concluded that Morales’s
underlying claim lacks merit because the prosecutor’s comment (1) was fair,
based on the evidence presented; (2) was offered to rebut Morales’s
credibility; and (3) did not violate a constitutionally or statutorily protected
right. See id. at 8. Moreover, after summarizing the “overwhelming”
evidence of Morales’s guilt established at trial, the PCRA court concluded that
the outcome of Morales’s trial “was not affected in any meaningful way” by
the evidence concerning, or the prosecutor’s comments regarding, Morales’s
tattoo. See id. at 8-12. We agree with the PCRA court’s cogent analysis,
which is supported by the record. Therefore, we affirm on this basis as to
Morales’s first issue. See id. at 5-12.
In his second claim, Morales challenges trial counsel’s effectiveness for
failing to file a motion to suppress evidence seized from his apartment
(including, inter alia, a .40 caliber Glock semi-automatic pistol, a pistol box, a
magazine for a Glock semi-automatic pistol, and a gun cleaning kit). Brief for
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Appellant at 25, 30. Morales contends that the Affidavit for the search warrant
is “grossly defective,” and did not establish a reasonable probability that the
firearm used in the shooting would be located in his apartment. See id. at
27-30. Morales argues that trial counsel had no reasonable basis for failing
to file a motion to suppress. Id. at 30. Morales also claims that he was
prejudiced by counsel’s failure because the evidence admitted at trial was
used to show that Morales is a gun owner and firearms aficionado, but had
little probative value as to his identity as the shooter. Id. at 30-31.
In its Opinion, the PCRA court set forth the relevant law, addressed
Morales’s claim, and concluded that it lacks merit. See PCRA Court Opinion,
9/7/18, at 12-18. Because the PCRA court’s sound reasoning is supported by
the record and free of legal error, we affirm on this basis as to Morales’s
second claim. See id.
In his third claim, Morales argues that trial counsel was ineffective for
failing to call Costanzo as an expert witness to testify that the analysis
performed by Sgt. Jones, the Commonwealth’s expert witness in forensic
reconstruction, was flawed. See Brief for Appellant at 14-22. Specifically,
Sgt. Jones opined that the fatal shot had come from Morales’s vehicle, which
he was driving at that time. Id. at 15-16. Morales claims that Costanzo, the
proprietor of Accident Cause and Analysis, LLC, who has more than 30 years
of experience in investigations and reconstructions, was ready and willing to
testify at trial regarding the following weaknesses and discrepancies in Sgt.
Jones’s testimony:
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 The victim walked 535 feet from the Turkey Hill store on New
Holland Avenue to the location where he was shot, but only
about 75 feet of that walk was recorded on cameras. Sgt.
Jones’s calculations assumed that the victim walked at the same
speed for the entire 535 feet, which is “pure speculation.”
 Sgt. Jones’s calculations assumed an “average” acceleration to
turn out of the Turkey Hill parking lot, onto New Holland
Avenue, even though there was no indication that the vehicle
accelerated in an “average” manner.
 Based on Sgt. Jones’s “flawed” assumption that the victim
walked at the same speed on New Holland Avenue as he had
walked within the Turkey Hill parking lot, Sgt. Jones excluded
the possibility that a light-colored SUV, which was in the area
at approximately the same time as the shooting, could have
been involved.
Id. at 18-19. According to Morales, trial counsel’s asserted basis for failing to
call Costanzo as a witness (i.e., to avoid giving the Commonwealth a copy of
Costanzo’s report prior to trial, in an effort to surprise Sgt. Jones and more
effectively damage Sgt. Jones’s credibility), was “unsuccessful” and “not
particularly effective.” Id. at 19-20; see also id. at 20 (arguing that Sgt.
Jones “was a veteran witness and [] must have been well aware of the
weaknesses in his analysis.”). Morales argues that he was prejudiced by trial
counsel’s inaction because Costanzo’s testimony “was the one and only
explanation which made sense given the limited information available in this
case.” Id. at 21.
In its Opinion, the PCRA court set forth the relevant law, addressed
Morales’s claim, and concluded that it lacks merit. See PCRA Court Opinion,
9/7/18, at 19-25. Specifically, the PCRA court set forth Sgt. Jones’s expert
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testimony regarding his accident reconstruction analysis. See id. at 19-21.
The PCRA court additionally pointed out that trial counsel met with Costanzo
twice prior to trial, and Costanzo helped trial counsel prepare for the cross-
examination of Sgt. Jones. See id. at 21-22; see also id. at 22 (noting
Costanzo’s testimony during the PCRA hearing that trial counsel had “followed
through” with the cross-examination questions they had prepared). We agree
with the PCRA court’s analysis, which is supported by the record, and affirm
on this basis as to Morales’s third claim. See id. at 19-25.
In his fourth claim, Morales avers that trial counsel was ineffective for
failing to object to Detective Wettlaufer’s testimony concerning bullet
trajectory analysis, as he was not properly qualified as an expert witness.
Brief for Appellant at 31-32. Morales claims that the use of trajectory rods to
plot a bullet’s trajectory requires specialized knowledge. Id. at 32. Morales
acknowledges this Court’s decision in Commonwealth v. Kennedy, 151 A.3d
1117, 1122-27 (Pa. Super. 2016) (collecting cases and, in a matter of first
impression, holding that a police officer’s testimony concerning bullet
trajectories was a permissible lay opinion, and did not require the specialized
knowledge of an expert witness), but points out that the Kennedy decision
was filed after the jury trial in the instant case. Brief for Appellant at 33; see
also id. (wherein Morales stated his wish to challenge the Kennedy decision).
Morales also argues that counsel’s asserted basis for failing to object to the
trajectory testimony (i.e., that Detective Wettlaufer’s testimony could be
useful for Morales’s case to show that the shot could have been fired from
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another vehicle) was unreasonable, because Detective Wettlaufer had not
conducted an analysis relative to the opposing lane of travel. Id. at 33-34.
Morales claims that he was prejudiced by trial counsel’s failure because
Detective Wettlaufer’s testimony corroborated the testimony of other
witnesses. Id. at 34.
In its Opinion, the PCRA court set forth the relevant law, addressed
Morales’s final claim, and concluded that it lacks merit. See PCRA Court
Opinion, 9/7/18, at 25-28. The PCRA court specifically remarked that
Detective Wettlaufer “made it clear to the jury that he was not testifying as
an expert, nor was he offering an opinion to a reasonable degree of scientific
certainty.” Id. at 26. The PCRA court’s reasoning is supported by the record
and free of legal error. We therefore affirm on this basis as to Morales’s final
claim. See id. at 25-28. Moreover, we must decline Morales’s invitation to
revisit this Court’s sound decision in Kennedy.
Based upon the foregoing, we affirm the PCRA court’s Order denying
Morales’s Petition for relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2019
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Circulated 05/09/2019 03:04 PM
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