Com. v. Montanez, J. ( 2018 )

J-S41038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOANILEE MONTANEZ :
:
Appellant : No. 1530 EDA 2017
Appeal from the PCRA Order April 11, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009567-2010
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 15, 2018
Appellant, Joanilee Montanez, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, which denied his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate
them.2
Appellant raises the following issues for our review:
DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT’S
PCRA PETITION WHERE PCRA COUNSEL RENDERED
INEFFECTIVE [ASSISTANCE] FOR NOT ADVANCING A
MERITORIOUS CLAIM THAT DIRECT APPEAL COUNSEL WAS
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2The PCRA court also granted counsel’s motion to withdraw as counsel on
April 11, 2017.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41038-18
INEFFECTIVE FOR NOT RAISING ON APPEAL THAT THE
TRIAL COURT [ERRONEOUSLY] ADMITTED HEARSAY
IDENTIFICATION TESTIMONY OF SEVERAL WITNESSES.
DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT’S
PCRA PETITION WHERE PCRA COUNSEL HAD RENDERED
INEFFECTIVE [ASSISTANCE] FOR FAILING TO ADVANCE A
MERITORIOUS CLAIM THAT DIRECT APPEAL COUNSEL WAS
INEFFECTIVE FOR NOT RAISING ON APPEAL THAT TRIAL
COUNSEL WAS INEFFECTIVE FOR: (A) FAILING TO OBJECT
TO PREJUDICIAL ARGUMENTS[;] (B) FAILING TO OBJECT
TO THE ADMISSION OF INFLAMMATORY PHOTOGRAPHS[;]
(C) FAILING TO OBJECT TO THE TRIAL COURT’S DECISION
NOT TO REMOVE AN UNTRUTHFUL JUROR [DUE] TO HIS
NATIONALITY.
DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT’S
PCRA PETITION WHERE PCRA COUNSEL FAILED TO AMEND
AND CURE [THE] PETITION.
(Appellant’s Brief at 6).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
-2-
J-S41038-18
Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Rose Marie
DeFino-Nastasi, we conclude Appellant’s issues merit no relief. The PCRA
court opinion comprehensively discusses and properly disposes of the
questions presented. (See PCRA Court Opinion, filed September 11, 2017, at
3-13) (finding: (1) no hearsay was elicited during testimony of Angela Ledino
because she was impeached only with her prior statement that recounted
statement Appellant had made to her; Appellant also challenges testimony of
Miriam Acevedo and Zeleica Diaz, recounting what witness David Montes told
them, as alleged hearsay; trial counsel objected to admission of those
statements, but court overruled objection and appellate counsel did not
challenge court’s ruling on appeal; specifically, Mr. Montes testified he was
present when Appellant shot Decedent, but Mr. Montes did not report homicide
until he was arrested on drug offense over one month later; after Mr. Montes
gave statement about homicide, Commonwealth charged Mr. Montes with
conspiracy, but those charges were ultimately dismissed; at Appellant’s trial,
defense offered theory that Mr. Montes’ statement to detectives about
Appellant’s involvement in homicide was fabricated to get Mr. Montes out of
trouble; defense counsel thoroughly cross-examined Mr. Montes about his
delay in reporting homicide; to rehabilitate Mr. Montes’ credibility,
Commonwealth presented testimony from Miriam Acevedo and Zeleica Diaz,
-3-
J-S41038-18
that Mr. Montes had told them Appellant shot Decedent, as early as night of
incident and two weeks later; statements at issue were non-hearsay because
they were not offered for truth of matter asserted, i.e., that Appellant shot
Decedent; rather, Commonwealth elicited testimony from witnesses, per Rule
613(c), to rehabilitate Mr. Montes’ testimony from attack of recent fabrication;
moreover, even if court’s admission of statements at issue was erroneous,
error was harmless, in light of overwhelming evidence of identification of
Appellant as shooter by other eyewitnesses; appellate counsel cannot be
deemed ineffective for failing to raise meritless claim on appeal, and PCRA
counsel similarly was not ineffective for declining to pursue it; (2) at trial,
Commonwealth admitted photo of crime scene that depicted Decedent’s body
covered by sheet with blood on it; photo was shown to give overall view of
crime scene; fact that photo depicted blood does not necessarily render it
gruesome and inflammatory; court would not have granted Appellant mistrial
had trial counsel moved for mistrial on that basis; Commonwealth used photo
of overall crime scene so jury could envision distance, lighting, and ability of
eyewitnesses to make their observations; as this issue lacks merit, all of
Appellant’s related ineffectiveness claims fail; in opening statement,
prosecutor stated evidence would show Appellant was guilty of crimes
charged, which did not constitute personal opinion; prosecutor’s comments
during closing arguments were oratorical flair, illustrating that jurors must be
true to their “solemn duty” to do justice even if that task is difficult;
-4-
J-S41038-18
prosecutor’s comments were not improper, and Appellant’s related
ineffectiveness claims fail; during trial, one juror was almost one hour late for
court and delayed proceedings; juror initially said he had been in accident;
upon further questioning, juror admitted he had overslept; court did not
remove juror but stated if juror showed up late on following day, court would
remove him; juror was on time for duration of proceedings; court had
insufficient cause to remove juror; thus, Appellant’s related ineffectiveness
claims fail; (3) Appellant’s claim as presented in concise statement is too
vague for court to ascertain and address Appellant’s issue).3 Accordingly, we
affirm on the basis of the PCRA court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/18
____________________________________________
3 See Commonwealth v. Hansley, 24 A.3d 410 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (explaining concise statement that
is too vague to allow court to identify issue raised on appeal is functional
equivalent of no concise statement at all; if concise statement is too vague,
issue is waived on appeal).
-5-
Circulated 07/25/2018 01:56 PM
FILED
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
SEP 112017
CRIMINAL TRIAL DIVISION Offlce of Judicial Aecom
AIJpealS/Post Trial
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0009567-2010
v 1530 EDA 2017
JOANILEE MONTANEZ
51-CR-li009(;67-2010p, O
CP Comm v Monranez Joan,lee
.t nion
lll/111/IIII
OPINION
Rose Marie Defino-Nastasi, J. IIIWll//l
8000031781
PROCEDURAL HISTORY
On June 20, 2013, Petitioner was found guilty after a jury trial, presided over by the
Honorable Rose Marie DeFino-Nastasi, of First Degree Murder, 18 Pa CS§ 2502(a), as a felony
of the first degree, Violation of the Uniform Firearms Act, 18 Pa.C.S. § 6106, as a felony of the
third degree, Violation of the Uniform Firearms Act, 18 Pa CS.§ 6108, as a misdemeanor of the
first degree, and Possession of an Instrument of Crime (PIC), 18 Pa.C S § 907, as a misdemeanor
of the first degree. The same day he was sentenced to life without possibility of parole for the
First Degree Murder Conviction and a concurrent 3.5 to 7 years for the VUFA 6106 conviction.
No further penalties were imposed for the VUFA 6108 and PIC convictions.
On July I, 2013, Petitioner filed a timely post-sentence motion, challengmg the weight
and sufficiency of the evidence presented at trial, claiming that the sentence for the VUF A 6106
conviction was outside of the sentencing guidelmes, and requesting that a new trial be granted
On July 24, 2013, Petitioner's post-sentence motion was denied without a hearing.
On August 22, 2013, Petitioner filed a direct appeal.
On February 9, 2015, the Superior Court affirmed the judgement of sentence.
On September 28, 2015, the Pennsylvania Supreme Court denied allocator.
On January 20, 2016, Petitioner files this timely, instant.pro se, PCRA petition.
On January 30, 2017, PCRA counsel James Lammendola, Esquire, filed a Finley letter of
no-merit and motion to withdraw as counsel.
On February 3, 2017, Petitioner filed a prose response to PCRA counsel's Finley letter.
On February 28, 2017, Petitioner filed apr_o se amended PCRA petition.
On March 15, 2017, this Court filed a 907 Notice to Dismiss, declaring that the PCRA
petition would be formally dismissed on April 11, 2017.
On March 31, 2017, Petitioner filed a pro se response to the 907 notice.
On April 1 \, 2017, the instant PCRA petition was formally dismissed by the PCRA court.
On April 28, 2017, Petitioner filed a notice of appeal with the Superior Court.
On May 26, 2017, Petitioner filed a Rule l 925(b) Statement of 6.;rovs Complained of on
Appeal, pursuant to an Order of the Court. The claims are as follows (they have been reworded
for ease of disposition):
I. The court erred in dismissing Petitioner's PCRA petition where PCRA counsel
rendered ineffective assistance of counsel for failing to develop a meritorious
claim that appellate counsel was ineffective for failing to raise on appeal that the
trial court erred in admitting hearsay identification testimony of several witnesses.
II. The court erred in dismissing Petitioner's PCRA petition where appointed PCRA
counsel rendered ineffective assistance of counsel for failing to develop a
meritorious claim that trial counsel was ineffective for not objecting to the
admission of inflammatory photographs.
III. The court erred in dismissing Petitioner's PCRA petition where PCRA counsel
rendered ineffective assistance of counsel for failmg to develop a meritorious
claim that trial counsel was ineffective for not objecting to prejudicial and
inflammatory remarks made by the Commonwealth during opening and closing
remarks.
IV. The court erred in dismissing Petitioner's PCRA petition where PCRA counsel
was ineffective for failmg to develop a meritorious claim that the trial court
deprived Petitioner of his right to a fair and impartial trial, where the court caught
one of the jurors in a lie yet refused to remove him because he was Hispanic
V. The court erred in dismissing PetitJ.oner's PCRA petition where PCRA counsel
rendered ineffective assistance of counsel for failing to amend PCRA petition
where he noticed a slight defect in it.
ANALYSES
All of Petitioner's claims allege ineffective assistance of counsel The law provides that
under the P.C RA., counsel is presumed to be effective and defendant bears the burden of
establishing ineffectiveness Com v Pierce, 527 A.2d 973 (Pa. 1987). In order to establish that
trial counsel's representation was deficient, defendant must prove that his underlying claim has
arguable ment and that counsel's conduct lacked any reasonable basis. Com v. Durst, 559 A.2d
504, 505 (Pa. 1989); Com v Davis, 541 A2d 315, 318 (Pa. 1988). Further, a defendant cannot
be granted any relief absent the additional showing that counsel's performance adversely
affected the outcome of the trial. In assessing a claim of ineffectiveness, when it is clear that
appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis
alone, without a determination of whether the first two prongs have been met. Com v
Travaglta, 661 A.2d 352, 357 (Pa 1995). Counsel cannot be ineffective for failing to pursue a
meritless claim. Com v Loner, 836 A.2d 125, 132 (Pa Super 2003)(en bane), appeal denied,
852 A.2d 311 (Pa 2004).
Petitioner raises a number of layered ineffective assistance of counsel claims - claims that
trial or appellate and PCRA counsel were ineffective. In a layered ineffective assistance of
counsel claim, PCRA counsel is not ineffective for failing to raise an ineffective assistance of
counsel claim where the underlying claim lacks merit. As the S l.ll?f'�Court has explained:
"To prevail on a claim of appellate counsel's ineffectiveness for failure to raise an
allegation of trial counsel's ineffectiveness, a PCRA petitioner must present a 'layered'
claim, i.e., he or she must present argument as to each of the three prongs of the Pierce
test for each layer of allegedly ineffective representation. To establish the arguable merit
prong of a claim of appellate counsel ineffectiveness for failure to raise a claim of trial
counsel ineffectiveness, the petitioner must prove that trial counsel was ineffective under
the three-prong Pierce standard. If the petitioner cannot prove the underlying claim of
tnal counsel ineffectiveness, then petitioner's derivative claim of appellate counsel
ineffectiveness of necessity must fail, and it is not necessary for the court to address the
other two prongs of the Pierce test as applied to appellate counsel."
Com v Paddy, 15 A.3d 431, 443 (Pa. 2008).
The arguable merit prong regarding PCRA counsel's ineffectiveness may only be
satisfied by pleadmg and proving all three elements of the ineffective assistance of counsel test
regarding the underlying allegation of counsel's ineffectiveness. Com v Dennis, 950 A.2d 945,
954 (Pa 2008).
ISSUE I
The court erred in dismissing Petitioner's PCRA petition where PCRA
counsel rendered ineffective assistance of counsel for failing to develop a
meritorious claim that appellate counsel was ineffective for failing to raise on
appeal that the trial court erred in admitting hearsay identification testimony
of several witnesses.
PCRA counsel did evaluate Petitioner's claim that appellate counsel was ineffective for
failing to challenge on appeal the trial court's rulings admitting hearsay statements made to
several witnesses by witness David Montes.
The hearsay in question was elicited during the testimony of Miriam Acevedo and
Zeleica Diaz No hearsay was ehcited during the testimony of Angela Ledino since she was only
impeached with her prior statement which recounted a statement made to her by Petitioner
himself and not by David Montes.
Miriam Acevedo testified that witness David Montes told her approximately two weeks
after the murder that it was Petitioner who shot the decedent. N .T. 06/19/13 at p. 22. Likewise,
Zeleica Diaz gave a statement to detectives that she saw Montes and Petitioner running after
hearing shots, saw Petitioner holding a gun, and Montes told her that Petitioner shot the
decedent. Tnal counsel did object to the admission of these statements, however the court
overruled the objection and appellate counsel did not challenge the ruling on appeal. PCRA
counsel analyzed the issue and found that, although it had merit, Petitioner was not prejudiced
because of the overwhelming amount of evidence notwithstanding the statements against
Petitioner.
Hearsay is an out of court statement offered to prove the truth of the matter asserted.
Pa.R.E. 80l(c) The statements admitted were not offered for the truth of the matter (i.e. that
Petitioner shot the decedent). There was already ample eyewitness testimony presented to
establish that fact. The statements were admitted pursuant to Pa.R.E. 613 in order to rehabilitate
Montes's testimony from an attack of recent fabrication.
Montes testified that he was present when Petitioner shot the decedent on October 31st
2009. However, Montes did not report that he witnessed the homicide to authorities until he was
arrested on December 9, 2009, on a drug offense. After Montes gave a statement to Homicide
detectives, he was then arrested as a conspirator to the homicide. Ultimately, Montes' charges
were dismissed for lack of evidence at the preliminary hearing. In opening arguments, the
defense told the jury that Montes only came forward and identified Petitioner as the shooter after
he himself was arrested and became a suspect In support of its theory, the defense cross-
examined Montes about waiting over a month, until he was arrested, before mentioning that
Petitioner did the shooting. It was the defense's contention that Montes' statement to homicide
detectives was fabricated based on his motive to get himself out of trouble.
In response, the Commonwealth presented statements made by Montes to Acevedo and
Diaz, identifying Petitioner as the shooter as early as the night of the incident and two weeks
thereafter, to rehabilitate Montes' credibility. Pa. R. E. 613(c) provides that prior consistent
statements are admissible for the purpose of rehabihtating a witness whose credibility has been
attacked by an express or implied charge of " fabrication, bias, improper influence or motive, or
faulty memory." Com. v Baker, 2008 Pa. Super. 288, 963 A2d 495 (2008); Com v Hunzer,
2005 Pa. Super. 13, 868 A2d 498 (2005). Pa. R. E. 613(c)(l) is also specific about the timing of
consistent statements offered to rebut a charge of fabrication, bias , improper influence or
motive. The statement must have been made "before that which has been charged existed or
arose" The rationale is that only a statement that predates the motive to falsify or other problem
can rebut it. In the instant matter the statements by Montes to Acevedo and Diaz were made
prior to his arrest on the drug and homicide charges and before he would have had a motive to
fabricate.
Furthermore, assuming, arguendo, that one could find that the statements were hearsay,
the admission of the statements would be harmless error. See Com v Hicks, 156 A.3d 1114,
1149- l I 40 (Pa. 201 7), (where it was held that "harmless error exists where: (1) the error did not
prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence
was merely cumulative of other untamted evidence; or (3) the properly admitted and
uncontradicted evidence of gum was so overwhelming that the prejudicial effect of the error by
comparison could not have contributed to the verdict) and Com v Allshouse, 614 Pa 229, 36
A.3d 163, 182 (Pa. 2012) (where the doctrine of harmless error was held to be a "technique of
appellate review designed to advance judicial economy by obviating the necessity for a retrial
where the appellate court is convinced that a trial error was harmless beyond a reasonable
doubt."), There was overwhelming evidence of identification in addition to the statements.
Newell Crespo, Brian Ellington and Montes all identified Petitioner as the shooter.
Therefore, appellate counsel cannot be found ineffective for failing to raise a mentless
issue and as such PCRA counsel cannot be found ineffective.
ISSUE II
The court erred in dismissing Petitioner's PCRA petition where PCRA
counsel rendered ineffective assistance of counsel for failing to develop a
meritorious claim that trial counsel was ineffective for not objecting to the
admission of inflammatory photographs.
PCRA counsel did analyze the issue of whether trial counsel was ineffective for not
objecting to the admission of certain inflammatory photos. Counsel correctly found that the
issue lacked merit
There was a photo of the scene presented depicting the decedent's body covered with a
sheet that had a blood stain on it. See Exhibit C22�9, attached hereto and marked as 'Exhibit A.'
The photo was actually shown to give an overall view of the crime scene. The photo was not
inflammatory simply because it depicted blood. It has been held in Pennsylvania that in a
homicide tnal the presence of the victim's blood in a photograph does not necessarily render a
photograph inflammatory. Com v Rivers, 537 Pa. 394, 644 A.2d 710 (Pa 1994) It has also
been held that a photograph is not inflammatory because it depicts the murder victim. Com v
Saranchak, 675 A.2d 268, 275 (Pa. 1996).
Trial counsel would not have been granted a mistrial had he moved for one A mistrial is
"an extreme remedy ... that must be granted only when an incident is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial " Com v Vazquez, 617 A.2d
786,787-88 (Pa. Super. 1992). The photo displayed was not gruesome nor was there a large
amount of blood on the sheet The photo depicted the overall view of the crime scene to enable
the jury to envision distance, lighting, and the ability of eyewitnesses to make their observations.
The body of the decedent had not yet been removed and as such was in the middle of the cnme
scene
Since this issue has no merit, tnal counsel cannot be found ineffective for failing to move
f'nr"' m,c;,tri�I and as such PCRA counsel cannot be found ineffective.
ISSUE III
The court erred in dismissing Petitioner's PCRA petition where PCRA
counsel rendered ineffective assistance of counsel for failing to develop a
meritorious claim that trial counsel was ineffective for not objecting to
prejudicial and inflammatory remarks made by the Commonwealth during
opening and closing remarks.
PCRA counsel did correctly analyze the issue of trial counsel's ineffectiveness for not
objecting to prejudicial and inflammatory remarks made by the prosecutor during opening and
closing arguments. Petitioner claims that the prosecutor voiced his personal opimon that
Petitioner was guilty dunng openmg and closing arguments. As to opening arguments, the
record belies this claim. The record shows that the prosecutor argued that "the evidence would
show" that Petitioner was guilty of the crimes charged.
Counsel's remarks to the jury may contain fair deductions and legitimate inferences from
the evidence presented during the testimony. The prosecutor may always argue to the Jury that
the evidence establishes the defendant's guilt, although a prosecutor may not offer his personal
opinion as to the guilt of the accused either in argument or in testimony from the witness stand
Nor may he or she express a personal belief and opinion as to the truth or falsity of evidence of
defendant's guilt, including the credibility of a witness Com v Chmiel, 777 A.2d 459, 466 (Pa.
Super. 2001)> appeal denied, 788 A 2d 372 (Pa 2001).
As to closing argument, the prosecutor argued to the jury at the very end of his closmg
argument that it is hard to stand up and announce a verdict of guilt but that it is a solemn duty.
To make his point with oratorical flair the prosecutor said the following·
"Folks, this is not a whodunit. It never has been, 1t never will be and it is not today but I
will not stand up and pretend it is a pleasant thing to find somebody guilty of first degree
murder. It is not. It is a duty and it is a solemn duty and when the time comes, all I ask rs
that you stand up, have the courage in your heart to stand up for what is right, stand up
for what is just and you say to the Defendant, as I do, Joanilee Montanez, sir, you are
guilty of the first degree murder of Bryan Jubilee."
N.T 06/20/13 at p. 150.
"Generally, a prosecutor's arguments to the jury are not a basis for the granting of a new
trial unless the unavoidable effect of such comments would be to prejudice the jury. forming in
their minds fixed bias and hostility towards the accused which would prevent them from properly
weighing the evidence and rendering a true verdict." Com v. Jones, 546 Pa. 161, 683 A.2d 1181,
1199 ( 1996) (citation omitted). A prosecutor enjoys reasonable latitude during closing
arguments, and may advocate with force, vigor, and oratorical flair. Com v Brown, 55 l Pa.
465, 711 A 2d 444, 454 (1998) (citauon omitted). Nonetheless. this latitude is not unrestrained.
Argument must be based upon matters in evidence, or upon the legitimate inferences that can be
drawn from that evidence Com v. Chester, 526 Pa. 578, 587 A.2d 1367, 1377 (1991). "We
must consider the challenged statements within the context in which they were offered. We will
not view those statements in a vacuum." Com. v Weiss, 565 Pa. 504, 776 A.2d 958, 968 (2001)
Clearly, this comment was not the prosecutor's attempt to personally vouch for the
evidence or to prejudice the jury against Petitioner, but instead was a rather theatrical exhibition
to the Jury to illustrate that they must be true to their oath even if it is difficult
Since this issue has no merit, trial counsel cannot be found ineffective for failure to object
to the remark. As such, PCRA counsel cannot be found ineffective.
Issue IV
The court erred in dismissing Petitioner's PCRA petition where PCRA
counsel was ineffective for failing to develop a meritorious claim that the trial
court deprived Petitioner of his right to a fair and impartial trial, where the
court caught one of the jurors in a lie yet refused to remove him because he
was Hispanic.
PCRA counsel did correctly analyze the issue of trial counsel's ineffectiveness for failure
to request removal of a juror who gave differing accounts of why he was late for court.
The Juror in question was almost an hour late for court, thereby delaying the proceedings.
The information the Court received from the court officer was that the juror indicated he had
been in an accident. The Court then questioned the juror, who at first said there was an incident
on the highway and then that he overslept. The Court did not delve into the differing versions
because the Court decided to keep the juror and did not want the juror to feel any animosity
toward the Court or the attorneys.
THE COURT: "The problem that we have with him, he, basically.just lied. I didn't want
t" opt into it because obviously he has to make a decision in this case. I have not
removed him. I don't want to upset him, so that it might affect his decision. So I think
what we will do is give him another chance. If he is late tomorrow, ten minutes late,
that's it, he is out and I will take care of any contempt or anything like that."
N.T 06/19/13 atp. 8.
"The discharge of a juror is within the sound discretion of the trial court. Absent a
palpable abuse of that discretion, the court's determination will not be reversed." Com. v
Jacobs, 639 A2d 786, 790 (Pa 1994). In Saxton, our Supreme Court held that: "While the
decision to remove a juror because of inability to perform the usual function of a Juror is within
the sound discretion of the tnal Judge, the exercise of this judgment must be based upon a
sufficient record of competent evidence to sustain removal." Com v Saxton, 353 A.2d 434, 436
(Pa 1976), see also Bruckshaw v Frankford Hosp of Ctty of Philadelphia, 58 A.3d 102, 106
(Pa. 2012) (recognizing "established precedent that once a principal juror is seated and sworn,
that juror cannot be removed without good cause on the record")
There was not sufficient good cause to remove this juror. The juror was late. He was not
completely forthright regarding the reason at first, but then admitted he overslept and promised
to be on time (which he was for the duration of the trial).
Trial counsel had no basis to request removal of the juror Therefore trial counsel cannot
be found ineffective and thus it follows that PCRA counsel cannot be found ineffective.
ISSUEV
The court erred in dismissing Petitioner's PCRA petition where PCRA
counsel rendered ineffective assistance of counsel for failing to amend PCRA
petition where he noticed a slight defect in it.
The Court cannot ascertain the meaning of Petitioner's claim. This Court is unaware of
any defect in Petitioner's prose petition.
CONCLUSION
Based on the foregoing, the court's denial of the PCRA petition should be affirmed.
By the Court:
EXHIBIT
'A'
Commonwealth v. Joanilee Montanez
CP-51-CR-0009567-2010
Opinion
Proof of Service
I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and m
the manner indicated below, which service satisfies the requirements of Pa.R.Crirn.P. 114:
Defendant: Joamlec Montanez, LB5775
SCI Forest
P.O. Box 945
286 Woodland Drive
Marienville, PA 16239
Type of Service: () Personal () First Class Mail (x) Other, Please Specify: Certified
District Attorney: Philadelphia District Attorney's Office
PCRA Unit
Widener Bldg
3 South Penn Square
Philadelphia, PA 19107
Type of Service: ( ) Personal ( ) Fust Class Mail (x) Inter-Office
Date: 09/11/17
�-
Michael G. Zaleski
. Rose Mane Defino-Nastasi