Com. v. Rodriguez, F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. : : : FRANKIE RODRIGUEZ : : Appellant : No. 3181 EDA 2019

Appeal from the PCRA Order Entered September 20, 2019 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1009231-2005

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 15, 2020

Frankie Rodriguez (“Rodriguez”) appeals from the Order denying his Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Counsel for Rodriguez has filed an Application to withdraw from representation, and a No-Merit Letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We grant counsel’s Application to withdraw, and affirm the Order of the PCRA court.

In its Opinion, the PCRA court summarized the history underlying this appeal as follows:

On May 10, 2004, Albert Lorenzano (“Lorenzano”) died from a shotgun blast to the back of his head. His body was found in an alley off [of] Redfield Street in Philadelphia. [Ronald Philmore ____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

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(“Philmore”)] identified [Rodriguez] as having walked down that alley with [Lorenzano]. Minutes later, [Philmore and Darlene McCoy] heard a loud blast and [Rodriguez] emerged, alone, from the alley.

Dr. Gregory McDonald, an Assistant Medical Examiner, testified that [Lorenzano] died from a shotgun wound to the neck and head[,] which pierced the spinal cord. The gunshot wound was “devastating[,]” and caused [Lorenzano] to collapse immediately.

PCRA Court Opinion, 12/16/19, at 1-2 (quoting Trial Court Opinion, 11/16/09, at 1-2). As the PCRA court explained, at the jury trial,

[Rodriguez] testified in his own defense and denied having killed [Lorenzano]. He also presented evidence from an alibi witness alleged to be romantically involved with him, a fact he denied.

[Rodriguez] was tried [in August 2007,] and the jury found him guilty of first-degree murder and possessing instruments of crime[ (“PIC”),2] generally, [] on August 23, 2007. On October 17, 2007, [Rodriguez] received a sentence of life imprisonment on the murder conviction[,] and a consecutive sentence of two and one-half to five years’ incarceration on the [PIC] conviction. Following the imposition of sentence[, Rodriguez] filed a [N]otice of [A]ppeal[,] and on August 18, 2010, the Superior Court affirmed the judgment of sentence. Commonwealth v. Rodriguez, 11 A.3d 1030 (Pa. Super. 2010) ([unpublished memorandum]). [Rodriguez thereafter filed a [P]etition for allowance of appeal in the Pennsylvania Supreme Court, which[,] on March 9, 2011, denied the [P]etition. Commonwealth v. Rodriguez, 20 A.3d 486 (Pa. 2011)].

On February 6, 2012, [Rodriguez] filed a pro se PCRA [P]etition. Barnaby Wittels, Esquire (“Attorney Wittels”), thereafter entered his appearance and on March 7, 2014, [Attorney] Wittels filed an [A]mended [P]etition alleging that trial counsel had been ineffective for not properly investigating the matter[,] and for not calling as defense witnesses certain persons named in the [A]mended PCRA [P]etition that would have testified ____________________________________________

2 See 18 Pa.C.S.A. §§ 2502(a), 907.

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that [Rodriguez] did not kill [Lorenzano]. Counsel thereafter filed a [S]upplemental [A]mended [P]etition on July 6, 2017.[FN]

[Attorney] Wittels was relieved as counsel and on April 1, [FN]

2019, Stephen T. O’Hanlon, Esquire [(“PCRA counsel”)], was appointed to represent [Rodriguez].

PCRA Court Opinion, 12/16/19, at 2-3 (one footnote added, one footnote in original).

On September 20, 2019, following an evidentiary hearing, the PCRA court denied Rodriguez’s Petition. Thereafter, Rodriguez filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. In his Concise Statement, Rodriguez presented the following claims for appellate review:

[1. Whether] the PCRA court’s decision to [deny Rodriguez’s] PCRA Petition was not supported by the record and free from legal error in that [Rodriguez] credibly testified that he notified trial counsel of the real shooter in the underlying murder[,] but [Rodriguez] was afraid to testify as to this at trial[,] and trial counsel was ineffective and could have found an alternate means to implicate this other individual[?]

[2. Whether] trial counsel was [] ineffective for failing to investigate exculpatory witnesses that credibly testified at an evidentiary hearing that [Rodriguez] was not the shooter[?] ….

See No-Merit Letter at 3 (paragraph notations added; capitalization omitted).

A Turner/Finley no-merit letter must (1) detail the nature and extent of counsel’s review; (2) list each issue the petitioner wished to have reviewed; and (3) include an explanation of why the petitioner’s issues were meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).

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“Counsel must also send to the petitioner (1) a copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007). If counsel has met the above requirements, we then conduct an independent review of the petitioner’s issues to determine if they are in fact without merit. Commonwealth v. Muzzy, 141 A.3d 509, 511 (Pa. Super. 2016). If we conclude that the claims are without merit, we then grant counsel’s petition to withdraw. Id.

Our review discloses that PCRA counsel has complied with the dictates of Turner/Finley. PCRA counsel has filed an Application to withdraw and filed a Turner/Finley No-Merit Letter and forwarded them to Rodriguez. Finally, PCRA counsel informed Rodriguez of his right to hire a new lawyer or file a pro se response.3 Accordingly, we next address whether this appeal, in fact, lacks merit. See Muzzy, supra.

As our Supreme Court has explained,

[u]pon reviewing an order in a PCRA matter, we must determine whether the findings of the PCRA court are supported by the record and whether the court’s legal conclusions are free from error. The findings of the PCRA court and the evidence of record are viewed in a light most favorable to the prevailing party. The PCRA court’s credibility determinations, when supported by the record, are binding; however, this court applies a de novo standard of review to the PCRA court’s legal conclusions. We must ____________________________________________

3Rodriguez has not hired new counsel, and has not filed a pro se response to PCRA counsel’s Application and No-Merit Letter.

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keep in mind that the petitioner has the burden of persuading this Court that the PCRA court erred and that such error requires relief. Finally, this Court may affirm a valid judgment or order for any reason appearing of record.

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations omitted).

Rodriguez first claims that his trial counsel rendered ineffective assistance by not implicating another person in the shooting. No-Merit Letter at 3. According to Rodriguez, he identified the perpetrator to his trial counsel. Id. Rodriguez argues that counsel failed to find an “alternative means” to implicate “this other individual[.]” Id. At the PCRA hearing, Rodriguez testified that he told his trial counsel that he saw another individual, with a gun, in the area. N.T., 9/20/19, at 5. Rodriguez knew the person as “Shiz” (phonetic spelling), which, he believed, was slang for “Shawn.” Id. Rodriguez now argues that his counsel should have found a way to implicate this person in the murder, without Rodriguez’s testimony. No-Merit Letter at 6.

In its Opinion, the PCRA court set forth the appropriate law regarding a claim of ineffective assistance of counsel, addressed this claim, and concluded that it lacks merit. See PCRA Court Opinion, 12/16/19, at 4-10. We agree with the sound reasoning of the PCRA court and affirm on this basis with

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regard to Rodriguez’s first claim.4, 5 See id.

Rodriguez also claims that his trial counsel rendered ineffective assistance by not investigating exculpatory witnesses. No-Merit Letter at 3.

To prove that trial counsel provided ineffective assistance for failing to call a witness, a petitioner must demonstrate that

(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.

Commonwealth v. Brown, 196 A.3d 130, 167 (Pa. 2018).

Rodriguez identified only Hall and Pedro as potential exculpatory witnesses. The PCRA court deemed the testimony of those witnesses to be incredible. See PCRA Court Opinion, 12/16/19, at 10. Consequently, Rodriguez has failed to demonstrate how the absence of their testimony was ____________________________________________

4 In particular, we observe that the PCRA court deemed incredible the testimony of Rodriguez, Donald Pedro (“Pedro”), and Rasheem Hall (“Hall”). PCRA Court Opinion, 12/16/19, at 10. We will not disturb the PCRA court’s credibility determination, as it is supported in the record. See Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015) (recognizing that “[a] PCRA court’s credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court.” (citation omitted)).

5 There is a typographical error in a citation on page 4 of the PCRA court’s Opinion. The citation at issue should read Commonwealth v. Holmes, 905 A.2d 507, 509 (Pa. Super. 2006) (emphasis added). In addition, the citation to Commonwealth v. Martins, 1 A.3d 868, 888 (Pa. 2010), found on page 9 of the PCRA court’s Opinion, was replaced by the Pennsylvania Supreme Court at Commonwealth v. Martin, 5 A.3d 177, 197 (Pa. 2010).

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so prejudicial as to have denied him a fair trial. See Brown, 196 A.3d at 167. Thus, Rodriguez’s ineffectiveness claim fails. See id.

Because there is no merit to Rodriguez’s claims, we grant counsel’s Application to withdraw, and affirm the Order of the PCRA court denying Rodriguez’s Petition for relief.

Application granted. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/15/2020

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