Com. v. Tirado, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANDREW TIRADO :
:
Appellant : No. 2745 EDA 2018
Appeal from the PCRA Order Entered August 24, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0007416-2009.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: Filed: May 20, 2021
Andrew Tirado appeals from the order denying his first timely petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. We affirm.
The pertinent facts and procedural history are as follows: Around
midnight on March 7, 2009, Christene Turner asked her boyfriend, Thomas
Barr, to go to a local store and purchase her a beverage. When he did not
return promptly, Ms. Turner stepped out onto her porch to look for him. At
that time, she saw Mr. Barr walking down the street toward her home. As he
walked past an alleyway, Tirado and a second, unidentified man grabbed Mr.
Barr and pulled him into the alley.
Upon making this observation, Ms. Turner ran down the street and into
the alley, where she saw Tirado and the other man pinning Mr. Barr against a
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wall. The two men then threw Mr. Barr to the ground and kicked and hit him.
Ms. Turner began to run toward them while yelling at the men. The two men
fled, and Ms. Turner chased them. During this pursuit, Tirado grabbed a gun,
turned around, and fired a shot in her direction. Mr. Barr told police that
Tirado and the other man had taken his wallet and $120.00 in cash.
Following Tirado’s arrest on March 17, 2009, the Commonwealth
charged him with robbery, attempted murder, and a firearm violation, and
related charges. On December 7, 2010, the Commonwealth filed a motion to
admit evidence of other bad acts pursuant to Pa.R.E. 404(b)(2). With this
motion, the Commonwealth sought permission to introduce evidence that,
four days after the incident at issue, Tirado displayed a handgun when he and
another man committed a robbery during a drug transaction, occurring near
midnight, in close proximity to the incident at issue. The Commonwealth
sought to introduce this evidence to establish that Tirado had access to a
weapon.
On January 6, 2011, the trial court held a hearing on the motion. At
that time, trial counsel informed the court that Tirado was not present, and
counsel did not waive his presence. N.T., 1/6/11, at 4. Counsel further
informed the court that he did not intend to call any witnesses. The trial court
and the parties then agreed to present legal argument regarding the motion
but defer ruling on the motion until the start of trial and in Tirado’s presence.
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On January 10, 2011, with Tirado present, the trial court gave counsel
an opportunity to present additional argument, and counsel declined. The trial
court than granted the motion. At trial, a police officer testified that, while
investigating a different matter, Tirado told him that he had a 9mm semi-
automatic gun four days after the robbery in this case.
On January 12, 2011, a jury convicted Tirado of robbery and related
charges, but acquitted him of attempted murder. On April 13, 2011, the trial
court sentenced him to an aggregate term of ten to twenty years of
imprisonment. Tirado filed a timely appeal to this Court. In an unpublished
memorandum filed on July 8, 2012, this Court affirmed his judgment of
sentence and, on December 18, 2013, our Supreme Court denied Tirado’s
petition for allowance of appeal. Commonwealth v. Tirado, 82 A.3d 1057(Pa. Super. 2013, affirmed, 81 A.3d 77 (Pa. 2013).
Tirado filed a timely pro se PCRA petition on October 20, 2014, and the
PCRA court appointed counsel on June 4, 2015. On April 13, 2017, PCRA
counsel filed an amended PCRA petition. Thereafter, the Commonwealth filed
a motion to dismiss. On July 24, 2018, the PCRA court issued a Pa.R.Cim.P.
907 notice of its intent to dismiss Tirado’s amended PCRA petition without a
hearing. Tirado filed a pro se response. By order entered August 24, 2018,
the PCRA court denied Tirado’s petition. This timely appeal followed. The
PCRA court did not require Pa.R.A.P. 1925 compliance but did file a Rule
1925(a) opinion.
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Tirado raises the following single issue on appeal:
A. Did the PCRA court commit an error of law and [commit]
an abuse of discretion by denying [Tirado] PCRA relief on
his claim alleging that trial counsel was ineffective for
failing to object to his absence during [the] Pa.R.E.
404(b) hearing?
Tirado’s Brief at 2.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(en banc) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
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Tirado’s issue asserts ineffectiveness of his trial counsel. To obtain relief
under the PCRA premised on a claim that counsel was ineffective, a petitioner
must establish by a preponderance of the evidence that counsel’s
ineffectiveness so undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) the petitioner was prejudiced by counsel's act or
omission. Id. at 533. A finding of "prejudice" requires the petitioner to show
"that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different." Id. A failure
to satisfy any prong of the test for ineffectiveness will require rejection of the
claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
The same attorney represented Tirado at trial and on appeal. Tirado
asserts that his counsel “was ineffective for permitting a Pa.R.E. 404(b)
hearing to occur in [his] absence despite having objected to the holding of the
hearing because [he] was not present.” Tirado’s Brief at 8. According to
Tirado, because this pretrial hearing constituted a “critical stage” of the
proceedings, he had a constitutional right to be present.
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The PCRA court found no merit to this claim because, “trial counsel did
not waive [Tirado’s] presence at the hearing.” PCRA Court Opinion, 11/20/18,
at 4.1 The court further explained:
Counsel went on to clarify that he did not plan on calling
any witnesses and would be solely making legal argument.
Thus, the court concluded that [Tirado’s] absence from the
hearing would not prejudice [Tirado] or change the
proceedings of the hearing. Counsel’s legal argument would
have been the same regardless of [Tirado’s] presence at the
hearing. [Tirado] cannot meet the first and last prong of
the [ineffectiveness] test, because counsel did not ever
waive [Tirado’s] right to be present and because [Tirado]
was not prejudiced as a result of his absence at the motion
hearing.
Id. at 5. Our review of the record supports the PCRA court’s conclusions.
Tirado’s claims to the contrary are unavailing. Although the trial court
heard the parties’ legal argument regarding the admission of the evidence at
issue in the courtroom and outside the presence of Tirado, the court did not
grant the motion until the parties were given additional time to argue and
Tirado was present.
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1 In brief, Tirado maintains that, “[w]ithout consulting with [him], trial counsel
waived [his] presence at the hearing and permitted the hearing to take place.”
Tirado’s Brief at 10. Our reading of the pretrial hearing transcript supports
the PCRA court’s conclusion that trial counsel did not waive Tirado’s presence.
Indeed, later in his brief, Tirado acknowledges that trial counsel “objected to
[the hearing] taking place without [him] being present.” Id. at 15.
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Moreover, Tirado cites no persuasive authority to establish that the
pretrial “hearing” at issue constituted a critical stage of the proceedings. As
our Supreme Court has summarized:
“Article I, § 9 of the Pennsylvania Constitution and
Pennsylvania Rule 602 guarantee the right of an accused to
be present in the courtroom at every stage of a criminal
trial.” Commonwealth v. Hunsberger, 619 Pa. 53, 58
A.3d 32, 38 (2012). Such right, however, is not absolute.
A defendant “has a due process right to be present in his
own person whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to
defend against the charge. Id. at 37 (citing Kentucky v.
Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631(1987) (internal citations omitted), Accordingly, “the
defendant is guaranteed the right to be present any stage
of the criminal proceeding that is critical to the outcome if
his presence would contribute to the fairness of the
procedure.” Id.Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa. 2014) (footnote
omitted).2 This Court has also found that a defendant’s right to be present “is
not inclusive of every step in the proceedings:
[A] defendant’s right to be present at all stages of his
trial does not extend to all procedural matters in preparation
for trial such a preliminary pretrial motions and arguments
on matters of law, especially where his absence causes no
prejudice, but his presence is required when the testimony
of witnesses is being given.
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2 In the omitted footnote, the High Court cited Rule 602, which provides that
a defendant “shall be present at every stage of the trial including the
impaneling of the jury and the return of the verdict, and the imposition of
sentence[.]” Pa.R.Crim.P. 602(a).
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Commonwealth v. Ah Thank Lee, 566 A.2d 1205, 1207 (Pa. Super. 1989)
(citation omitted).
In support of his claim that the pretrial hearing at issue was a “critical
stage” requiring his presence, Tirado relies on this Court’s decision in
Commonwealth v. McLaurin, 437 A.2d 440 (Pa. Super. 1981), where we
found both a due process violation and ineffective assistance of counsel
occurred after a suppression hearing took place without the defendant’s
presence. McLaurin is easily distinguishable from the pretrial hearing at issue
in the case
In McLaurin, the defendant was absent from a courtroom proceeding:
where witnesses’ testimony regarding his identification as a
participant in a crime would have be given. This was
testimony which tended to show that the [defendant] had
done the acts for which he was being tried, and, therefore,
a critical stage in the adjudicatory process for the accused.
McLaurin, 437 A.2d at 444. Here, unlike a suppression hearing, the
Commonwealth did not present any witnesses but rather only legal argument
in support of its desire to present certain evidence a trial. Thus, the pretrial
hearing at issue in this case, argument on the Commonwealth’s motion in
limine, is more akin to a sidebar or in-chamber conference, neither of which
requires the defendant’s presence. See, e.g., Commonwealth v. Boyle,
447 A.2d 250, 253 n.7 (Pa. 1982) (explaining, a “defendant’s presence in
chambers and at sidebar is not required where he is represented by counsel”).
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Finally, we agree that Tirado cannot establish prejudice. Tirado asserts
that “he could have provided key information relevant to the motion that
would have reasonably caused the hearing judge to deny the Commonwealth’s
motion.” Tirado’s Brief at 9. In his brief, Tirado later asserts that, had he
been present, “he could have consulted with trial counsel and reminded him
that a weapon was not recovered in the current case and neither was a fired
cartridge case nor other ballistic evidence casings.” Id. at 16. Tirado further
asserts that he could have testified during the hearing to deny having a
weapon during the incident at issue. Id. at 17.
The arguments of trial counsel against granting the Commonwealth’s
motion in limine clearly establish that counsel knew no weapon or ballistic
evidence was found in this case. Moreover, counsel unsuccessfully challenged
the admission of evidence of Tirado’s access to weapons on direct appeal. See
Tirado, supra. Finally, in addition to the PCRA court’s conclusion that his
presence would have in no way affected the argument presented by counsel,
we note that because Tirado was acquitted of attempted murder and the other
gun-related charges, his claim of prejudice fails.
In sum, we conclude that Tirado’s clam of trial counsel’s ineffectiveness
for failing to ensure his presence during argument on the Commonwealth’s
motion in limine is without merit. As such, that same counsel cannot be found
ineffective for failing to raise this issue on direct appeal. We therefore affirm
the PCRA court’s order denying Tirado post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/21
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