Com. v. Rodriguez, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,

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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, 

30 A.3d 1111

, 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.”

Id. -3-

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, 

10 A.3d 1276

, 127 (Pa.

Super. 2010). Moreover, Pennsylvania courts have, largely verbatim, adopted

the test espoused by the United States Supreme Court in Strickland v.

Washington, 

466 U.S. 668

(1984). See Commonwealth v. Pierce, 

527 A.2d 973

, 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, 

830 A.2d 567

, 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, 

811 A.2d 994

, 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, 

732 A.2d 1167

, 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, 

631 A.2d 1298

, 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




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