Com. v. Martinez, M. ( 2021 )

J-S33035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL MARTINEZ :
:
Appellant : No. 60 EDA 2021
Appeal from the PCRA Order Entered November 20, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008516-2016
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 14, 2021
Michael Martinez appeals from the order dismissing his petition filed
under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Martinez’s
counsel filed a Turner/Finley1 no-merit letter and petition to withdraw. We
grant counsel’s petition and affirm the PCRA court’s order.
The trial court set forth the following facts:
At [Martinez’s] waiver trial, Police Officer Kathy Cerebe of
the Philadelphia Police Department testified that, on July 14,
2016 at approximately 12:00 pm, she conducted a
plainclothes surveillance on the 3000 block of N. Water
Street in Philadelphia, PA from a confidential location. From
a location approximately 100 feet south of the 3000 block
and while using binoculars, Officer Cerebe observed Michael
Martinez . . . on the east side of the block. Officer Cerebe
testified that [Martinez] wore a black t-shirt and jeans,
along with sunglasses on the top of his head. Officer Cerebe
saw two unknown white males hand [Martinez] an unknown
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
J-S33035-21
amount of money in exchange for unknown items. Officer
Cerebe radioed the descriptions and directions of the two
white males to her backup officers, but they were unable to
locate them. About a minute after the first transactions,
Officer Cerebe observed Steven Graciani walk southbound
on Water Street from Clearfield Street and approach
[Martinez]. After a brief conversation, Mr. Graciani handed
[Martinez] an unknown amount of money. In return,
[Martinez] handed Mr. Graciani unknown items. Officer
Cerebe relayed Mr. Graciani’s description and location to
backup officers while Mr. Graciani proceeded northbound on
Water Street. Based on that information, Police Officer
Raphael Maldonado stopped Mr. Graciani at 200 East
Lippincott Street. Officer Maldonado recovered one clear
plastic packet with a blue glassine insert stamped with a
minion cartoon character from Graciani’s pants pocket. The
packet contained a tan powdery substance, which was later
confirmed to be heroin through a NIK test performed in the
field and further testing the Philadelphia Police Department
chemistry lab.
A couple of minutes after [Martinez’s] transaction with Mr.
Graciani, Officer Cerebe observed Thomas Holland engage
in a short conversation with [Martinez] maybe a car length
or two farther, and then Mr. Holland handed [Martinez] an
unknown amount of money in exchange for unknown items.
Following the transaction, Mr. Holland left northbound on
Clearfield Street in a Ford F-150 pick-up truck. Based on
information received from Officer Cerebe, Police Officer
William Tull stopped Mr. Holland approximately at 12:10 pm
in the 100 block of Allegheny Avenue. Officer Tull arrested
Mr. Holland and recovered one clear plastic packet with a
blue glassine insert with a minion stamp and one lime-green
container from the passenger seat. Both packets were
tested via a NIK test performed in the field and further
testing by the Philadelphia Police Department chemistry lab.
The packet contained 0.11 grams of heroin. The green
container contained off-white chunks that tested positive for
cocaine.
[Martinez] crossed the street onto the west side of Water
Street after his transaction with Mr. Holland was complete.
[Martinez] was out of Officer Cerebe’s view for
approximately five to six minutes. Officer Cerebe left the
surveillance location in an unmarked vehicle. Once Officer
-2-
J-S33035-21
Cerebe located [Martinez on] Water Street, she called for
backup, relaying [Martinez’s] description and location.
Officer Cooper arrested [Martinez] after Officer Cerebe
positively identified [Martinez]. Officer Cooper recovered
$275.00 from [Martinez]. No narcotics were recovered from
[Martinez’s] person.
PCRA Court Opinion, filed Mar. 18, 2021, at 2-3 (citations to record omitted).
Following a bench trial, the court found Martinez guilty of possession
with intent to deliver a controlled substance (“PWID”) and possession of a
controlled substance. 35 P.S. §§ 780-113(a)(3), (16). The trial court
sentenced him to 12 to 27 months’ incarceration and three years’ probation
for the PWID conviction. It imposed no further penalty for the possession
conviction. Martinez filed a post-sentence motion, which the trial court denied.
We affirmed the judgment of sentence in February 2019. Martinez filed a
petition for allowance of appeal to the Pennsylvania Supreme Court, which
denied the petition in July 2019.
In February 2020, Martinez filed a pro se PCRA petition. The court
appointed counsel, who filed an amended PCRA petition claiming trial counsel
was ineffective for failing to interview two witnesses. His memorandum of law
in support of the petition included the names, addresses, dates of birth, and
driver license numbers for two witnesses—Graciani and Holland—and stated
that “[Martinez] asserts that the two witnesses would testify that [Martinez]
did not sell them drugs.” Memorandum of Law in Support of Amended Petition,
filed July 21, 2020, at 11. He did not attach to the PCRA petition affidavits or
witness certifications.
-3-
J-S33035-21
The PCRA court issued notice of its intent to dismiss without a hearing,
informing Martinez that he had not provided the “specifics regarding the
substance of the testimony regarding the[] witnesses” or “any evidence that
the witnesses were willing and available to testify.” Notice of Court’s Intent to
Dismiss Without Hearing Defendant’s Petition for Post-Conviction Relief, dated
Oct. 29, 2020, at ¶ 11. Martinez did not file a response to the Notice, and, in
November 2020, the court dismissed the petition. The PCRA court permitted
PCRA counsel to withdraw and appointed new counsel on appeal. Martinez
filed a timely notice of appeal.
Martinez’s counsel filed a Turner/Finley no merit letter and a petition
to withdraw as counsel.
Before addressing the merits of the appeal, we must review counsel’s
petition to withdraw. A Turner/Finley no-merit letter must: (1) detail the
nature and extent of counsel’s review; (2) list each issue the petitioner wished
to have reviewed; and (3) explain why the petitioner’s issues were meritless.
Commonwealth v Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (citing
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003)).
“Counsel must also send to the petitioner: (1) a copy of the ‘no-merit’
letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement
advising petitioner of the right to proceed pro se or by new counsel.” Id.(citation omitted). If counsel has met the above requirements, we then
conduct an independent review of the petitioner’s issues to determine if they
are in fact meritless. Commonwealth v. Muzzy, 141 A.3d 509, 511
-4-
J-S33035-21
(Pa.Super. 2016) (quoting Commonwealth v. Doty, 48 A.3d 451, 454
(Pa.Super. 2012)). Upon a conclusion that the claims are meritless, we will
then grant counsel’s petition to withdraw. Id.Here, in the Turner/Finley no-merit letter, counsel detailed the nature
and extent of his review, listed the issue Martinez wished to have reviewed,
and explained why the issue was meritless. See Turner/Finley Br. at 2-8.
Further, counsel sent Martinez a copy of the no-merit brief and petition to
withdraw and advised Martinez of his right to proceed pro se or with retained
counsel. See Letter dated July 6, 2021, from Counsel to Martinez, filed July
22, 2021. Counsel therefore met the procedural requirements for withdrawal.
Counsel lists the following issue in his brief: “Did the PCRA court commit
error when it dismissed the amended PCRA petition in which the only issue[]
raised was failure to interview the 2 men who purchased drugs from
Martinez?” Turner/Finley Br. at 5.
When reviewing an order denying PCRA relief, we must determine
“whether the PCRA court’s findings of fact are supported by the record, and
whether its conclusions of law are free from legal error.” Commonwealth v.
Small, 238 A.3d 1267, 1280 (Pa. 2020) (citing Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015)).
We presume counsel was effective and the petitioner bears the burden
of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965
(Pa.Super. 2017). A petitioner may overcome the presumption by pleading
and proving all of the following: “(1) the underlying legal claim has arguable
-5-
J-S33035-21
merit; (2) counsel had no reasonable basis for his or her action or inaction;
and (3) [the petitioner] suffered prejudice because of counsel’s action or
inaction.” Id. (quoting Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa.
2011)). A petitioner’s failure to prove any one of these factors defeats the
ineffectiveness claim. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.
2008).
When a petitioner raises a claim of ineffectiveness for failing to call a
witness, the petitioner satisfies the performance and prejudice prongs of the
ineffectiveness test if the petitioner establishes that: “(1) the witness existed;
(2) the witness was available to testify for the defense; (3) counsel knew of,
or should have known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the [petitioner] a fair trial.”
Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012) (citing
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009)). “[C]ounsel will
not be found ineffective unless the petitioner can show that the witness’s
testimony would have been helpful to the defense.” Id.Further, where a petitioner seeks an evidentiary hearing, the petition
must include “a certification signed by each intended witness stating the
witness’s name, address, date of birth and substance of testimony and shall
include any documents material to that witness’s testimony,” or “a
certification, signed by the petitioner or counsel, stating the witness’s name,
address, date of birth and substance of testimony. . . .” Pa.R.Crim.P. 9545(d)
-6-
J-S33035-21
(i)-(ii). Failure to substantially comply with the certification requirements of
render the proposed witness’s testimony inadmissible. Id. at 9545(d)(1)(iii).
In the Turner/Finley letter, counsel notes that Martinez did not satisfy
three of the five prongs required to prove counsel was ineffective for failure
to call a witness. He points out that Martinez did not show that the witnesses
were available and would have testified on his behalf, or that he was
prejudiced by the absence of their testimony. Counsel notes the witnesses had
been arrested and charged with crimes in connection with Martinez’s case,
and because Martinez’s PCRA counsel failed to show the cases had been
resolved prior to Martinez’s trial, Martinez failed to prove they would not have
exercised their Fifth Amendment right against self-incrimination. He further
notes PCRA counsel did not show they were willing to testify for Martinez, but
rather provided speculation that they would and as to what the testimony
would be.2
Here, the PCRA court concluded Martinez was not entitled to an
evidentiary hearing because he did not include a certificate establishing the
____________________________________________
2 In the Turner/Finley letter, counsel further states he investigated the
witnesses and learned that, after Martinez’s trial, the witnesses had pled guilty
to possession related to their arrest in this case.
-7-
J-S33035-21
witnesses were available and willing to testify and therefore the testimony
would have been inadmissible at the hearing:3
In his pro se fil[]ing and his PCRA petition, [Martinez] did
not provide the required certificate signed by the witnesses
he alleges should have been called to testify. Nor did he
substantially comply with 42 Pa.C.S.A. § 9545(d).
Although[] [Martinez] included the names, addresses,
including multiple addresses for one witness, and dates of
birth for the witnesses, he failed to state that the witness
would be available and willing to testify on his behalf. Since
[Martinez] did not meet the requirements for an evidentiary
hearing, any witness testimony would be inadmissible
[under] 42 Pa.C.S.A. § 9545(d)(1)(iii).
PCRA Ct. Op. at 7.
The court further found Martinez’s ineffectiveness claim lacked merit
because he provided no documentation that the witnesses were available and
willing to testify and failed to prove prejudice:
In the case at bar, this Court determined, without an
evidentiary hearing, that [Martinez’s] ineffective assistance
of counsel failed because the claim had no merit, and
[Martinez] suffered no prejudice due to counsel’s action.
While there is no dispute that the two witnesses existed or
that counsel knew the witnesses existed, [Martinez]
provided no documentation or objective proof that the
witnesses were available and willing to testify on his behalf.
While [Martinez] claims that the absence of the testimony
of these witnesses prejudiced his case, even if they had
testified, their testimony would not have altered the
outcome of the case. This Court found Officer Cerebe’s
____________________________________________
3 Because counsel filed a Turner/Finley letter, and whether a hearing was
required is intertwined with the failure to provide information on the
witnesses, we will discuss whether PCRA court erred in dismissing the petition
without a hearing together with the issue of whether the court erred in finding
the claim meritless.
-8-
J-S33035-21
testimony credible. Officer Cerebe served as part of the
Narcotics Bureau for the Philadelphia Police Department for
twenty-three years and the Narcotics Strike Force for five
years prior to the trial. As a member of the Narcotics Strike
Force, Officer Cerebe participated in at least 100
surveillances over those five years. Officer Cerebe also
testified, when she started in the Narcotics Bureau, she
worked in the field unit in plain clothes, “doing surveillances,
making purchases of narcotics, preparing search warrants.”
The two witnesses [Martinez] seeks to have testify were
seen exchanging money with [Martinez] for narcotics. Both
witnesses were stopped by other Philadelphia Police
Department officers within a few blocks and a short time
after the transactions with [Martinez]. Philadelphia Police
Department Officers recovered, from both witnesses, clear
plastic packets with a blue glassine insert stamped with a
cartoon character of a minion that contained an off-white
powdery substance suspected to be heroin. The substances
recovered from the witnesses were tested using the NIK test
and then submitted to the Philadelphia Police Department
chemistry lab. Upon further testing, the substances
recovered from the witnesses tested positive for heroin. The
second witness also possessed a lime green plastic container
containing alleged crack cocaine that was tested by the NIK,
submitted to Philadelphia Police Department chemistry lab
and tested positive for cocaine. Even if these witnesses
testified, their supposed testimony that they did not
purchase illegal narcotics from [Martinez] strains credulity
given the circumstances. Thus, [Martinez] did not suffer any
prejudice from the absence of the testimony of these
witnesses.
Id. at 9-10 (citations to record omitted).
The record supports the PCRA court’s factual findings, and it did not err
in dismissing the petition. Martinez failed to allege or prove that the witnesses
were available and willing to testify. Further, as the court noted, even if the
witnesses had testified as Martinez claimed they would, the testimony would
not have changed the outcome of the trial.
-9-
J-S33035-21
We agree with counsel that Martinez’s claim is meritless. Further,
following an independent review of the record, we see no claims with potential
merit.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2021
- 10 -