J-S42013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MIGUEL RODRIGUEZ :
:
Appellant : No. 786 EDA 2020
Appeal from the PCRA Order Entered January 24, 2020
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003835-2014
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 13, 2020
Miguel Rodriguez appeals from the January 24, 2020 order entered in
the Northampton County Court of Common Pleas, which dismissed his first
and timely petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
see 42 Pa.C.S.A. §§ 9541-9546, following an evidentiary hearing. On appeal,
Rodriguez raises two claims of ineffectiveness of trial counsel. After our
thorough review of the record, we find that Rodriguez has failed to
demonstrate any examples of ineffectiveness and therefore affirm.
Preliminarily, we note that the factual history of this case is laid out
extensively in Rodriguez’s direct appeal. See Commonwealth v. Rodriguez,
174 A.3d 1130
(Pa. Super. 2017). Briefly, after a heated argument between
several participants, shots were fired at a bar in Easton, Pennsylvania. The
gunfire struck the victim, who died from his wounds, despite receiving aid
from at least one police officer and the victim’s subsequent transport to a local
J-S42013-20
hospital. Upon arriving at the scene, police found, among other items, a
broken cell phone, a bag of marijuana, bullets, bullet fragments, and shell
casings near the victim. The cell phone and marijuana bag featured
Rodriguez’s DNA.
The Commonwealth empaneled a grand jury. Rodriguez testified at the
grand jury and stated: 1) he was at the bar, unarmed, on the night of the
homicide with two friends; 2) he utilized two cell phones at the time, but gave
one on that night to another person to use for drug transactions; 3) he never
approached the location inside of the bar where the shooting actually
occurred; and 4) he left the bar prior to hearing any gunshots and traveled to
his girlfriend’s house nearby.
At trial, one witness, a bouncer at the bar, testified that he saw
Rodriguez brandish a gun. The bouncer stated that he heard three gunshots
as he fled from the fracas. Additionally, a bartender who was working at the
bar on the date of the shooting and who was also at one point a paramour of
Rodriguez’s friend provided her recollection of events. Her testimony followed
having been stabbed ten times by Rodriguez’s “acquaintances” several months
after the homicide in this case, but prior to trial.
Ultimately, a jury found Rodriguez guilty of first-degree murder, and the
trial court sentenced to a term of life imprisonment without the possibility of
parole. After the trial court denied his post-sentence motions, Rodriguez
appealed to our Court. We affirmed the trial court’s judgment of sentence.
See
id. Rodriguez petitioned our
Supreme Court for an allowance of appeal,
-2-
J-S42013-20
but his petition was denied on May 30, 2018. Rodriguez did not seek any
further review with the United States Supreme Court.
Rodriguez now seeks PCRA relief. The PCRA court allowed for an
evidentiary hearing on the issues raised in his petition. After the PCRA court’s
denial of his petition, Rodriguez filed a timely notice of appeal and, following
prompting from the PCRA court pursuant to Pa.R.A.P. 1925(b), a concise
statement of errors complained of on appeal. The PCRA court resultantly filed
its Pa.R.A.P. 1925(a) opinion in support of its decision to deny Rodriguez’s
PCRA petition.
We summarize the two issues Rodriguez raises for our review:
1. Was trial counsel ineffective for failing to make a Pa.R.Crim.P.
403 or 404 objection to one of the witnesses’ testimony when
said testimony identified that Rodriguez’s acquaintances
stabbed her and killed her friend?
2. Was trial counsel ineffective for failing to object to grand jury
testimony being entered into the record when Rodriguez did
not receive a target letter and exercised his right to remain
silent during his trial?
See Appellant’s Brief, at 2.
When reviewing an order denying PCRA relief, “we must determine
whether the ruling of the PCRA court is supported by the record and is free of
legal error.” Commonwealth v. Chmiel,
, 1127 (Pa. 2011). “The PCRA court's credibility determinations are binding on this Court when they are supported by the record. However, this Court applies a de novo standard of review to the PCRA court's legal conclusions.”
J-S42013-20
As both of Rodriguez’s claims assert ineffective assistance of counsel,
we begin from the premise that counsel is presumed to have rendered
effective assistance. See Commonwealth v. Rivera,
, 127 (Pa. Super. 2010). Moreover, Pennsylvania courts have, largely verbatim, adopted the test espoused by the United States Supreme Court in Strickland v. Washington,
(1984). See Commonwealth v. Pierce,
, 976-77 (Pa. 1987). Therefore, to meet his burden of demonstrating ineffectiveness, Rodriguez must plead and prove by a preponderance of the evidence that: “(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different.” Commonwealth v. Fulton,
, 572 (Pa. 2003).
An ineffective assistance of counsel claim is fatally defective if the
petitioner fails to satisfy any prong of the three-part test. See
Commonwealth v. Jones,
, 1002 (Pa. 2002). To that point, as an appellate court, we “need not analyze the prongs of an ineffectiveness claim in any particular order.” Commonwealth v. Johnson,
139 A.3d 1257
, 1272 (Pa. 2016). Lastly, “counsel cannot be deemed ineffective for failing to raise a meritless claim.”
Id. In his first
issue, Rodriguez contends that testimony from one witness
-4-
J-S42013-20
violated several rules of evidence and that trial counsel was ineffective by not
objecting to this testimony. Specifically, Rodriguez objects to testimony he
believes constituted evidence of prior bad acts. He argues on appeal that such
testimony should have been excluded pursuant to Pa.R.E. 403 (allowing the
court to exclude relevant evidence if its value is outweighed by, among other
things, unfair prejudice), Pa.R.E. 404(a)(1) (explaining that character or trait-
based evidence cannot be admitted to prove that a person acted in accordance
with either of those dispositions on any particular occasion), or Pa.R.E.
404(b)(1) (identifying that prior “bad acts” are not admissible to prove a
person acted in accordance with that character). Rodriguez highlights Rule
404(b)(1)’s requirement that the Commonwealth provide reasonable notice of
its intent to present prior bad act evidence either prior to trial, or, if it can
show good cause, during trial. See Pa.R.E. 404(b)(3).
In the interest of fully getting to the heart of Rodriguez’s averments, we
have replicated the at-issue colloquy between the Commonwealth and the
witness:
COMMONWEALTH: Were you assaulted in June?
WITNESS: I was stabbed 10 times.
COMMONWEALTH: Who stabbed you?
WITNESS: Acquaintances of [Rodriguez].
COMMONWEALTH: Do you know did [witness’s former
paramour] have anything to do with the stabbing?
WITNESS: Of course he had something to do with it.
COMMONWEALTH: But after that, did you start opening up even
more about what you had observed [of the homicide in
Northampton County]?
WITNESS: Yes, because then they killed my friend …so I wasn’t
like–it was just like, when is enough[?]
-5-
J-S42013-20
COMMONWEALTH: And that was in New York?
WITNESS: Yeah.
COMMONWEALTH: But you’re not saying [Rodriguez] did that?
WITNESS: No. No. I’m saying his acquaintances did that, just like
his acquaintances did that to me.
N.T., 2/3/16, at 158-61.
Rodriguez avers that the witness’s testimony “was improper introduction
of prior bad acts.” Appellant’s Brief, at 8. Rodriguez interprets the above text
as “essentially align[ing] Rodriguez with another homicide” and “plant[ing] in
the minds of the jurors that Rodriguez is the type of person to have a witness
stabbed 10 times.”
Id. Rodriguez claims the
Commonwealth failed to provide 404(b)(3) notice of its intent to introduce this prior bad act evidence. See
id. Other than providing
a singular citation to and recitation of Pa.R.E. 403, Rodriguez fails to discuss why the testimony he identifies should have been excluded as irrelevant or unfairly prejudicial. In the absence of any support, such a claim necessarily fails. See Commonwealth v. Williams,
, 1175 (Pa. 1999) (explaining “the unavailability of relief based upon
undeveloped claims for which insufficient arguments are presented on
appeal”).
Regarding his 404 assertions, Rodriguez’s argument hinges on whether
the prior bad act testimony at issue impugned Rodriguez’s character. We see
no arguable merit to this claim. The witness expressly disavowed Rodriguez’s
involvement with her being stabbed or the murder of the witness’s friend.
Accordingly, there is no predicate prior bad act or character evidence to
-6-
J-S42013-20
consider in that evidence’s admissibility.
Simply put, Rule 404 does not apply. First, the highlighted testimony
does not establish that Rodriguez, himself, committed any prior bad acts.
Second, the only potential “character evidence” identified is Rodriguez’s
acquiescence to “acquaintance status” with these other individuals who
apparently stabbed the witness and killed the witness’s friend. However,
Rodriguez provides no support to establish that merely being an acquaintance
with another who commits bad acts somehow imputes bad act evidence on
oneself. Moreover, the testimony does not indicate that Rodriguez even had
any knowledge of these bad acts. Therefore, any objection premised on Rule
404 would have failed, and it was not ineffective assistance of counsel to not
pursue such an objection.
Next, Rodriguez maintains that it was a due process violation under the
Fifth and Fourteenth Amendments of the United States Constitution when the
Commonwealth read grand jury testimony into the record at trial. Rodriguez
takes issue with not only the introduction of his own statements to the grand
jury, asserting that such testimony violated his right against self-
incrimination, but also contests the questions that the prosecutor asked him,
which “repeatedly contained highly incriminating, limitless layers of hearsay.”
Appellant’s Brief, at 11.
We find that there has been no violation of his right against self-
incrimination. Although he exercised his right to remain silent during his trial,
-7-
J-S42013-20
that action does not immunize him from the impacts of his own past
testimony. Rodriguez, who was represented by counsel throughout the entire
grand jury proceeding, does not challenge whether he was apprised of his
right against compulsory self-incrimination. Absent some indication that his
testimony was not voluntary or that the court did not fully identify his rights,
we are constrained to conclude that his grand jury testimony was derived from
his own volition. Therefore, “[w]hen [Rodriguez] took the stand in the prior
proceedings without asserting his privilege against self-incrimination, he
thereby waived the privilege as to the testimony given, and that testimony
could be used against him in a subsequent trial.” Commonwealth v.
Ferguson,
516 A.2d 1200
, 1202 (Pa. Super. 1986).
Next, Rodriguez points to certain questions the prosecutor asked him in
front of the grand jury. He proclaims that, because these questions identify
non-testifying individuals and set forth their statements, he was denied his
right to cross examine the witnesses against him. He contends the questions
were inherently testimonial in nature and prohibited unless a named witness
was unavailable. See Commonwealth v. Ramtahal,
33 A.3d 602
, 610 n.5
(Pa. 2011); see also Pa.R.E. 804(b)(1). For example, one of the questions
asked why Rodriguez’s girlfriend’s mother would say that he was not at her
home at the time of the shooting. See N.T., 2/4/16, at 75.
“Hearsay is an out-of-court statement offered to prove the truth of the
matter it asserts.” In re Shahan,
, 1304 (Pa. Super. 1993).
-8-
J-S42013-20
Through our analysis of the questions Rodriguez has identified we ascertain
that the questions, themselves, were not being asked in order to prove any of
the “truth” arguably advanced within those out-of-court “statements.”
Instead, the questions were contextually necessary for the jury to fully
understand Rodriguez’s answers, which, in large part, formed the basis of his
alibi or were at least congruent with his alibi asserted at trial. Accordingly,
because the statements were not admitted for their truth, but rather their
effect on the listener – in this case, Rodriguez, as he testified before the grand
jury – the questions were not hearsay. See
id. Counsel, therefore, cannot
be
faulted for not objecting to a claim that lacked arguable merit.
Furthermore, even if those questions were erroneously entered into the
record, Rodriguez has failed to demonstrate that he suffered from any
resulting prejudice. Rodriguez merely states that prejudice ensued because
“no other witness testified about whether Rodriguez was at his girlfriend’s
home or whether or not he left his phone behind with someone else when he
decided to leave the bar.” Appellant’s Brief, at 15. Rodriguez then proceeds to
hollowly assert that, besides his own grand jury testimony, the only other
existent testimony was that of “two personally motivated witnesses.”
Id. However, given that
Rodriguez has provided no reason to effectively strike the
testimony of the two witnesses who actually saw him at the bar
contemporaneous to the shooting, we see no reason to conclude that there is
a reasonable probability that the outcome of the proceedings would have been
-9-
J-S42013-20
different. See Commonwealth v. Landis,
89 A.3d 694
, 699 (Pa. Super.
2014) (indicating that the trier of fact is free to believe all, part, or none of
the evidence when passing upon the credibility of witnesses).
As neither of Rodriguez’s issues constitute ineffective assistance of
counsel, we find that PCRA relief is unwarranted and affirm the order
dismissing his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/20
- 10 -
