Com. v. Gavilan-Cruz, P. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
PEDRO LUIS GAVILAN-CRUZ, : No. 1117 MDA 2017
:
Appellant :
Appeal from the PCRA Order, April 24, 2017,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0001911-2014
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 20, 2018
Appellant, Pedro Luis Gavilan-Cruz, appeals from the April 24, 2017
order of the Court of Common Pleas of Lancaster County denying appellant’s
petition for relief filed pursuant to the Post-Conviction Relief Act1 (“PCRA”).
After careful review, we affirm.
The PCRA court provided the following relevant facts and procedural
history:
On March 6, 2014, [appellant] was arrested and
charged with rape, involuntary deviate sexual
intercourse, aggravated indecent assault, terroristic
threats, unlawful restraint (two counts), simple
assault (two counts), and sexual assault.[Footnote 1]
These charges related to [appellant’s] sexual assault
of his ex-girlfriend while he held her hostage, under
the threat of death, in her home from March 2,
2014, to March 3, 2014.
1 42 Pa.C.S.A. §§ 9541-9546.
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[Footnote 1] 18 Pa.C.S.A. § 3121(a)(1),
18 Pa.C.S.A. § 3123(a)(1),18 Pa.C.S.A.
§ 3125(a)(2), 18 Pa.C.S.A. § 2706(a)(1),
18 Pa.C.S.A. § 2902(a)(1),(2),
18 Pa.C.S.A. § 2701(a)(1),(3), and
18 Pa.C.S.A. § 3124:1, respectively.
The case proceeded to a jury trial before [the
Honorable David L. Ashworth] on December 15,
2014, and concluded on December 18, 2014, with a
verdict of guilty on all nine charges. The jury further
found that [appellant] used a deadly weapon at the
time of each offense. Following the verdict,
sentencing was deferred pending a pre-sentence
investigation.
On April 2, 2015, the [PCRA] Court imposed
consecutive sentences of 8 to 16 years’ incarceration
for the rape and IDSI charges, plus concurrent
sentences of 5 to 10 years for the aggravated
indecent assault, 1 to 2 years for the terroristic
threats, 1 to 2 years for the unlawful restraint – risk
of bodily injury, 1 to 2 years for the unlawful
restraint – involuntary servitude, and 1 to 2 years for
each of the simple assault charges. The charge of
sexual assault merged with the rape count for
purposes of sentencing. The aggregate sentence,
therefore, was 16 to 32 years’ incarceration. The
sentencing was enhanced due to [appellant’s] use of
a deadly weapon during the commission of the
offenses. [Appellant] was RRRI ineligible, but
received credit for time served of 412 days.
Restitution in the amount of $2,078.92 was imposed,
as well as fees and costs. [Appellant] was advised at
sentencing of his lifetime registration obligations
pursuant to 42 Pa.C.S.A. § 9799.10. et seq., as a
Tier III sexual offender.
[Appellant] filed no post-sentence motions. A timely
notice of appeal to the Superior Court of
Pennsylvania was filed on April 29,
2015.[Footnote 2] On August 20, 2015, the
Pennsylvania Superior Court dismissed the appeal for
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failure of counsel to file a brief for [appellant.] (See
No. 758 WDA 2015.) [Appellant] had been
represented at trial, sentencing, and on direct appeal
by privately retained counsel, William D. Hobson,
Esquire.
[Footnote 2] Pursuant to this Court’s
directive, [appellant] filed a statement of
matters complained of on appeal, in
which [appellant] raised four issues:
(1) whether the prosecutor violated
Pa.R.E. 404 by failing to provide written
notice to defense counsel of the
Commonwealth’s intention to introduce
[appellant]’s prior bad acts; (2) whether
[appellant]’s right to testify was violated
by the Commonwealth’s intended use of
prior bad acts as rebuttal evidence;
(3) whether the Commonwealth
improperly withdrew the plea offer; and
(4) whether the guilty pleas were
properly entered in the two prior
convictions so as to serve as prior bad
acts in the instant case.
On July 14, 2016, [appellant], through newly
retained private counsel, filed a PCRA petition
claiming he was denied effective assistance of
counsel when Attorney Hobson failed to perfect his
direct appeal. The Commonwealth agreed that the
petition was timely and that [appellant] was entitled
to have his direct-appeal rights reinstated.
Accordingly, the Commonwealth did not contest the
PCRA [petition]. On July 20, 2016, [appellant] was
granted PCRA relief, and leave to file an appeal
nunc pro tunc to the Superior Court from his
judgment of sentence.
A nunc pro tunc appeal to the Superior Court of
Pennsylvania was filed on July 26, 2016.[Footnote 3]
(See No. 1238 MDA 2016.) A three-judge panel of
the Superior Court affirmed the judgment of
sentence in an unpublished memorandum filed on
December 5, 2016[Footnote 4] See
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Commonwealth v. Gavilan-Cruz, 2016 WL
7048829 (Pa.Super. 2016).
[Footnote 3] Pursuant to this Court’s
directive, [appellant] furnished a concise
statement of matters complained of on
appeal which set forth two bases for the
appeal: (1) “Attorney Hobson, prior to
trial, failed to properly prepare appellant
to testify during the trial”; and
(2) ”Attorney Hobson gave appellant bad
advice, resulting in appellant giving up
his right to testify.”
[Footnote 4] [Appellant]’s claims of
ineffectiveness were dismissed without
prejudice to his right to seek relief under
the PCRA, pursuant to Commonwealth
v. Grant, 572 Pa. 48, 813 A.2d 726(2002).
On December 13, 2016, an amended petition was
filed by PCRA counsel which raised the following
issues: (1) trial counsel failed to adequately prepare
his client to testify at trial; (2) trial counsel failed to
explain to [appellant] that [appellant’s] prior record
would not be presented to the jury if his testimony
were limited to the historical facts of the incident;
and (3) trial counsel advised [appellant] he was
more likely to be acquitted if he chose to remain
silent. The Commonwealth filed a response to the
amended petition on January 12, 2017, conceding
the need for an evidentiary hearing on these claims.
Accordingly, a hearing was held on February 27,
2017, at which time the [PCRA] Court heard
testimony from Defense Attorney Hobson and
[appellant]. Briefs having been filed by the parties,
this matter is now ripe for [consideration].
PCRA court opinion, 4/24/17 at 1-4 (citations omitted).
The PCRA court denied appellant’s petition on April 24, 2017.
Appellant filed a timely notice of appeal to this court on May 19, 2017. The
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PCRA court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) and Appellant timely
complied. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
July 13, 2017, in which it incorporated its April 24, 2017 opinion and order
denying appellant’s PCRA petition.
Appellant raises the following issue for our review:
Did the PCRA court err when it denied [appellant’s]
petition for post conviction relief when it found that
trial counsel provided effective assistance when trial
counsel failed to advise his client properly regarding
his right to testify due to his misunderstanding of the
trial court’s evidentiary ruling and misunderstanding
of the fundamenals [sic] or [sic] evidence and trial
counsel failed to prepare his client to testify at trial?
Appellant’s brief at 4 (capitalization omitted).
Appeals following the denial of PCRA relief are subject to the following
standard of review:
Our standard of review from the grant or denial of
post-conviction relief is limited to examining whether
the PCRA 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). We will not disturb findings that are
supported by the record. Commonwealth v.
Yager, 685 A.2d 1000, 1003 (Pa.Super. 1996) (en
banc).
Commonwealth v. Ousley, 21 A.3d 1238, 1241 (Pa.Super. 2011), appeal
denied, 30 A.3d 487 (Pa. 2011).
To be entitled to relief on an ineffective assistance
claim, a PCRA petition must establish: (1) the
underlying claim has arguable merit; (2) no
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reasonable basis existed for counsel’s action or
failure to act; and (3) he suffered prejudice as a
result of counsel’s error, with prejudice measured by
whether there is a reasonable probability that the
result of the proceeding would have been different.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127
(Pa. 2011) (employing ineffective assistance of
counsel test from Commonwealth v. Pierce, 527
A.2d 973, 975-976 (Pa. 1987)[Footnote 5] Counsel
is presumed to have rendered effective assistance.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
2010). Additionally, counsel cannot be deemed
ineffective for failing to raise a meritless claim.
Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.
2006). Finally, because a PCRA petitioner must
establish all the Pierce prongs to be entitled to
relief, we are not required to analyze the elements of
an ineffective assistance claim in any specific order;
thus, if a claim fails under any required element, we
may dismiss the claim on that basis. Ali, 10 A.3d at
291.
[Footnote 5]: Pierce reiterates the
preexisting three-prong test for
ineffective assistance of counsel in
Pennsylvania and holds it to be
consistent with the two-prong
performance and prejudice test in
Strickland v. Washington, 466 U.S.
668 (1984). Pierce, 527 A.2d 976-977.
Commonwealth v. Trieber, 121 A.3d 435, 444-445 (Pa. 2015).
A criminal defendant’s decision whether to testify in his own defense or
remain silent is a basic fundamental right grounded in both our national and
Commonwealth’s Constitutions. See U.S. Const. amdt. 5; Pa. Const. Art. I,
§ 9. Generally, a defendant cannot successfully claim ineffective assistance
of counsel for failing to call him to testify after a defendant has voluntarily
waived his right to testify in a colloquy, unless certain exceptions are
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established. Commonwealth v. Rigg, 84 A.3d 1080, 1086 (Pa.Super.
2014), citing Commonwealth v. Peay, 806 A.2d 22, 29 (Pa.Super. 2002),
appeal denied, 813 A.2d 840 (Pa. 2002); Commonwealth v. Schultz,
707 A.2d 513, 520 (Pa.Super. 1997).
In order to sustain a [PCRA] claim that counsel was
ineffective for failing to advise the appellant of his
rights in this regard, the appellant must demonstrate
either that counsel interfered with his right to testify,
or that counsel gave specific advice so unreasonable
as to vitiate a knowing and intelligent decision to
testify on his own behalf.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000), quoted by
Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013).
Here, appellant waived his right to testify on his own behalf. The
PCRA court administered the following colloquy in open court:
THE COURT: All right. Mr. Gavilan-Cruz, it’s my
understanding that you, after discussions with your
attorney, have chosen not to testify; is that correct?
[APPELLANT]: Yes.
THE COURT: All right. Do you understand that you
have both the right to testify and the right not to
testify? Do you understand that?
[APPELLANT]: Yes.
THE COURT: And that you understand by choosing
not to testify, the jury will be instructed that they
may not in any way draw any negative inference or
think that they should hold it against you for not
testifying? Do you understand that?
[APPELLANT]: Yes.
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THE COURT: . . . . Do you understand that I will
instruct the jury exactly that, and that they may not
draw any negative inference against you for your
decision to exercise your constitutional rights not to
testify? Do you understand that?
[APPELLANT]: Yes.
THE COURT: Is this a decision that you have made
of your own free will?
[APPELLANT]: Yes.
THE COURT: And you’ve discussed this with your
attorney; correct?
[APPELLANT]: Yes.
THE COURT: Have any threats or promises or
anything of any kind been made to you or against
you to force you to make this decision today?
[APPELLANT]: No.
THE COURT: All right. Do you have any questions
of me or of your attorney?
[APPELLANT]: No.
Notes of testimony, 12/17/14 at 500-501.
In Nieves, the defendant elected not to testify on his own behalf
because his counsel was concerned about the defendant’s previous
convictions, none of which were crimen falsi, being used for impeachment
purposes. Nieves, 746 A.2d at 1103. The defendant’s counsel initially
alluded to having concern that the defendant’s testimony may have opened
a door to allow the Commonwealth to use evidence of the convictions for the
purposes of impeachment; however, upon further examination by the PCRA
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court, counsel testified that his concern of opening the door was not the
primary reason that he advised the defendant not to testify. Id. at 1105.
Unlike in Nieves, appellant’s trial counsel testified that his primary
concern in advising appellant not to testify was that appellant would open
the door to allow the Commonwealth to use evidence of non-crimen falsi
convictions for the purpose of impeachment. See Pa.R.E. 404(a)(2)(A) (if a
defendant offers evidence of a particular character trait, a prosecutor may
then offer evidence to rebut). Specifically, Attorney Hobson testified that he
was concerned about the jury’s hearing about two previous convictions:
The jury doesn’t know about the prior attack of a
prior assault with the other -- with the other woman.
But if [appellant] take[s] the stand and say[s], you
know, [victim], I love you; [victim], I’d never hurt
you; [victim], I’d never harm you, it’s coming in.
And I said to [appellant], it is your decision, not
mine, but if you say those words and that comes
out, I believe you will get convicted.
....
All I could do, I had to lay out to him that if he --
again, if he said -- if his testimony went in certain
directions, and I couldn’t see how he could defend
himself and have that testimony not go in those
directions.
Notes of testimony, 2/27/17 at 42-43.
In its opinion, the PCRA court stated that it found Attorney Hobson’s
testimony to be credible. Based on Attorney Hobson’s testimony, we find
that he did not interfere with appellant’s right to testify on his own behalf, as
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Attorney Hobson emphasized to appellant that it was appellant’s decision.
We further find that Attorney Hobson’s advising appellant not to testify was
based on reasonable strategic concerns about preventing the jury from
learning of appellant’s previous convictions. (See notes of testimony,
2/27/17 at 42-43.) We therefore hold that the PCRA court’s denial of
appellant’s PCRA petition was supported by the evidence of record and is
free of legal error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/20/18
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