Com. v. Acosta, M.

• Court: Superior Court of Pennsylvania
• Decided: June 1, 2023
• Docket: 770 EDA 2022
• Status: Unpublished

Opinion

J-S10020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL ACOSTA : : Appellant : No. 770 EDA 2022

Appeal from the PCRA Order Entered March 3, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001322-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL ACOSTA : : Appellant : No. 771 EDA 2022

Appeal from the PCRA Order Entered March 3, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001323-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL ACOSTA : : Appellant : No. 772 EDA 2022

Appeal from the PCRA Order Entered March 3, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001324-2015

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J. J-S10020-23

MEMORANDUM BY LAZARUS, J.: FILED JUNE 01, 2023

Michael Acosta appeals from the orders, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After review, we

affirm.

This Court previously summarized the factual history of this case as

follows:

During the evening of October 25, 2014, Angel Pagan met his then-girlfriend, Tiffany Leach, at her residence. [] Leach entered [] Pagan’s car, and they drove away. Within minutes, the two began to argue, and [] Leach asked [] Pagan to take her home. [] Pagan complied. As they approached [Leach’s] house, [she] observed a person squatting behind a car on the sidewalk across from her home. [] Leach recognized this person as her former boyfriend, [Acosta].

As [] Leach turned toward [] Pagan to indicate that [Acosta] was on the sidewalk, [Acosta] stood and fired a weapon at [] Pagan’s car. [] Pagan immediately placed his car in reverse and attempted to flee. [Acosta] fired a second shot at the vehicle as it escaped. Neither person was injured; however, [] Pagan’s vehicle was damaged by a single bullet hole in the driver’s side door. [] Leach and [] Pagan fled to [Pagan’s] father’s house, which was located nearby. As they arrived, [] Leach received a telephone call from her mother, who was located inside [] Leach’s residence at the time of the shooting, indicating that the police had been summoned and that they should return to provide a statement. Subsequently, [] Leach and [] Pagan gave the police [statements] identifying [Acosta] as their attacker. ____________________________________________

1 Acosta has filed separate notices of appeal from each order in accordance with Pa.R.A.P. 341 and our Supreme Court’s decision in Commonwealth v. Walker, 195 A.3d 969 (Pa. 2018). Additionally, all three appeals raise identical claims and arise out of a consolidated trial docket. Accordingly, for purposes of our disposition, this Court consolidated the appeals sua sponte. See Pa.R.A.P. 513; Order, 10/12/22 (consolidating appeals).

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The following day, [Acosta] and an unidentified male approached [] Pagan at his place of employment. [Acosta] confronted [] Pagan, and the other individual threatened him. After the encounter, [] Pagan notified police and filed a report.

Commonwealth v. Acosta, 174 A.3d 44 (Pa. Super. 2017) (Table).

At Docket No. CP-51-CR-1322-2015 Acosta was charged with

intimidation of a witness2 and conspiracy.3 At Docket No. CP-51-CR-0001323-

2015 Acosta was charged with one count each of aggravated assault,4

aggravated assault with a deadly weapon,5 firearms not to be carried without

a license,6 carrying a firearm in public in Philadelphia,7 person not to possess

a firearm,8 simple assault,9 recklessly endangering another person (REAP),10

and possession of an instrument of crime (PIC).11 At Docket No. CP-51-CR-

0001324-2015 Acosta was charged with one count each of aggravated assault ____________________________________________

2 18 Pa.C.S.A. § 4952(a)(1).

3 Id. at § 903(c).

4 Id. at § 2702(a)(1).

5 Id. at § 2702(a)(4).

6 Id. at § 6106(a)(1).

7 Id. at § 6108.

8 Id. at § 6105(a)(1).

9 Id. at § 2701(a)(1).

10 Id. at § 2705.

11 Id. at § 907(a).

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and aggravated assault with a deadly weapon. Acosta proceeded to a

consolidated jury trial, during which the charges of REAP, PIC, and simple

assault were nolle prossed. The jury convicted Acosta of the remaining

offenses. The trial court deferred sentencing and ordered the preparation of

a pre-sentence investigation report and a mental health evaluation. On

December 18, 2015, the trial court sentenced Acosta to an aggregate term of

eleven to twenty-two years’ incarceration. Acosta appealed to this Court, and,

on June 6, 2017, we affirmed his judgment of sentence. See Acosta, supra.

Acosta did not seek review in our Supreme Court.

On October 26, 2017, Acosta filed a timely pro se PCRA petition, his

first. The PCRA court appointed counsel, and, on May 9, 2019, PCRA counsel

filed an amended PCRA petition. On November 15, 2019, the Commonwealth

filed a motion to dismiss. On December 31, 2019, Acosta filed a response.

On October 4, 2021, the PCRA court conducted an evidentiary hearing. On

March 3, 2022, the PCRA court dismissed Acosta’s PCRA petition as meritless.

Acosta filed a timely notice of appeal, and both Acosta and the trial court

complied with Pa.R.A.P. 1925.12

Acosta now raises the following claims for our review:

1. Did the PCRA court err in dismissing the PCRA petition as being without merit as trial counsel was ineffective for failing to call a ____________________________________________

12Prior to the filing of his Rule 1925(a) statement, Acosta’s counsel filed an application to withdraw with this Court. See Application to Withdraw, 5/12/22. This Court granted the application and directed the PCRA court to appoint new counsel. The PCRA court appointed Daniel Alvarez, Esquire, who remains as counsel at the time of this decision.

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ballistics expert. A defense expert would have testified that it was not possible to conclude that the car door defect was a bullet hole, that concluding that the defect being a “bullet hole” was not supported by any physical evidence, and that there was no physical evidence that recovered fired cartridge casings were connected to the defect in the car door. Trial counsel’s deficient performance resulted in prejudice to [Acosta] and had such defense expert testimony been provided there is a reasonable probability that the trial outcome would have been favorable to [Acosta.]

2. Did the PCRA court err in dismissing [Acosta’s] PCRA petition as being without merit as trial counsel was ineffective for failing to request a curative jury instruction where a police witness referred to a picture of [Acosta] as one pulled from prison release (mug shot). This evidence was unfairly prejudicial and deprived [Acosta] of a fair trial, violated his due process rights, and had such a curative instruction been provided[,] there is a reasonable probability that the trial outcome would have been favorable to [Acosta.]

Brief for Appellant, at 4.

When reviewing the [dismissal] of a PCRA petition, our scope of review is limited by the parameters of the [PCRA]. Our standard of review permits us to consider only whether the PCRA court’s determination is supported by the evidence of record and whether it is free from legal error. Moreover, in general[,] we may affirm the decision of the [PCRA] court if there is any basis on the record to support the trial court’s action; this is so even if we rely on a different basis in our decision to affirm.

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005)

(quotations and citations omitted).

Both of Acosta’s claims challenge the effectiveness of his trial counsel.

Generally, counsel is presumed to be effective, and “the burden of

demonstrating ineffectiveness rests on [the] appellant.” Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).

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To satisfy this burden, an appellant 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 [client’s] interests; and, (3) but for counsel’s ineffectiveness[,] there is a reasonable probability that the outcome of the challenged proceeding would have been different. Failure to satisfy any prong of the test will result in rejection of the appellant’s ineffective assistance of counsel claim.

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal

citations omitted).

“Generally, where matters of strategy and tactics are concerned,

counsel’s assistance is deemed constitutionally effective if he chose a

particular course that had some reasonable basis designed to effectuate his

client’s interests.” Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa.

2012). Additionally, courts should not deem counsel’s strategy or tactic

unreasonable “unless it can be concluded that an alternative not chosen

offered a potential for success substantially greater than the course actually

pursued.” Id.

In Acosta’s first claim, he contends that trial counsel was ineffective by

failing to challenge whether the hole in the car was caused by a bullet, and by

failing to secure a ballistics expert to determine whether the hole was caused

by a bullet. See Brief for Appellant, at 16-17. Acosta argues that this failure

prejudiced him because trial counsel invariably accepted the Commonwealth’s

theory that a shooting had occurred. Id. at 16. In pursuit of his PCRA, Acosta

retained Frederick Wentling, a firearm and tool mark expert, who testified that

the Commonwealth’s trial evidence did not support a conclusion that the hole

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in the vehicle was caused by a bullet. Id. at 17-18. Acosta contends that the

outcome of his trial would have been different if trial counsel had secured and

presented the testimony of a ballistics expert. Id. at 17-20. We disagree.

“Where a claim is made of counsel’s ineffectiveness for failure to call

witnesses, it is the appellant’s burden to show that the witness existed and

was available.” Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011).

Further, appellant must prove that “counsel was aware of, or had a duty

to know of the witness; the witness was willing and able to appear; and the

proposed testimony was necessary in order to avoid prejudice to the

appellant.” Id. (emphasis added). “The mere failure to obtain an expert []

witness is not ineffective [assistance of counsel.]” Id.

Preliminarily, we observe that Acosta has not attempted to assert, let

alone prove, that trial counsel knew of, or had a duty to know of, Wentling.

Furthermore, while Acosta presented Wentling’s testimony13 at the PCRA

evidentiary hearing, he argues, in his brief, that trial counsel should have

secured an expert. It is simply not enough to generally contend that counsel

should have secured an expert. Accordingly, Acosta’s failure to satisfy this

element is fatal to his claim and he is granted no relief. See Chmiel, supra. ____________________________________________

13 Wentling testified that he was unable to determine from the existing evidence whether the hole had been caused by a bullet. See N.T. PCRA Hearing, 10/4/21, at 7, 33 (Wentling testifying evidence had been destroyed since trial and, therefore, Wentling could not confirm whether hole had been caused by bullet). Rather, Wentling’s testimony focused on the evidence presented by the Commonwealth at trial, which, Wentling concluded, was insufficient to demonstrate the hole in the vehicle had been caused by a bullet. Id. at 26, 31.

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Moreover, the PCRA court, in its well-reasoned opinion, concluded that

Acosta had failed to demonstrate that trial counsel lacked a reasonable basis

for failing to call a ballistics expert at trial. See PCRA Court Opinion, 11/9/22,

at 4-14. Indeed, it is apparent from the record that Acosta’s trial strategy

was to contend that Pagan, not Acosta, was the shooter and that Pagan and

Leach were attempting to frame Acosta. See id. at 10-14; see also N.T.

PCRA Hearing, 10/4/21, at 42-44. In pursuit of this defense strategy, it was

imperative that trial counsel agree with the Commonwealth that a shooting

had occurred, otherwise she could not pin the actions upon Pagan. PCRA

Court Opinion, 11/9/22, at 11-14. Thus, contrary to Acosta’s claim, trial

counsel had a reasonable basis to agree that the hole was caused by a bullet,

and, therefore, Acosta’s claim fails. See Koehler, supra; Holt, supra.

In his second claim, Acosta argues that trial counsel was ineffective

when she failed to request a curative instruction after the Commonwealth

inappropriately referenced his mug shot. See Brief for Appellant, at 20-21.

Acosta claims that he and the Commonwealth had agreed that there “would

be no testimony of [Acosta]’s recent release from prison and mention of his

absence would simply be explained as [Acosta] being ‘out of town.’” Id at 22.

Acosta contends that the Commonwealth nevertheless infringed on this

agreement when Police Officer Richard Nicoletti told the jury he had received

Acosta’s photo from a prison release. Id. Acosta acknowledges that trial

counsel objected to this testimony and the trial court sustained the objection

and struck the testimony from the record, but he argues that counsel lacked

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a reasonable basis for failing to further request a curative instruction. Id. at

21-23. Acosta further contends that the outcome of his jury trial would have

been different if trial counsel had sought and received a curative instruction.

Id. at 23. Acosta is afforded no relief.

At the PCRA hearing, trial counsel testified and agreed that such an

agreement with the Commonwealth existed. See N.T. PCRA Hearing,

10/4/21, at 47-48; PCRA Court Opinion, 11/9/22, at 16 (quoting objection

exchange from N.T. Jury Trial 8/25/15, at 49).14 Additionally, trial counsel

stated that she did not request a cautionary instruction because Acosta’s mug

shot was only referenced a single time, in a trial spanning multiple days with

multiple witnesses. See N.T. PCRA Hearing, 10/4/21, at 48-49; PCRA Court

Opinion, 11/9/22, at 16-18. Moreover, trial counsel testified that she did not

want to draw the jury’s attention to the statement. Id. Further, the trial

court sustained trial counsel’s objection and ordered the reference stricken

from the record. PCRA Court Opinion, 11/9/22, at 16 (quoting objection

exchange from N.T. Jury Trial 8/25/15, at 49).

In light of the foregoing, we conclude that Acosta is not entitled to relief

on this claim. It is well-settled that the decision whether to seek a jury ____________________________________________

14 We note that the first day of the jury trial, August 25, 2015, appears to be omitted from the certified record on appeal. Nevertheless, it is not in dispute that this objection occurred, was sustained, and the testimony stricken. Additionally, the PCRA court, in its opinion, has block quoted the salient passages for our review. Accordingly, we conclude that the absence of this transcript has not impeded our review of this claim. See Commonwealth v. O’Black, 897 A.2d 1234, 1238 (Pa. 2006) (where notes of testimony are cited specifically by parties, this Court has reason to believe such evidence exists).

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instruction implicates a matter of trial strategy. See Commonwealth v.

Hawkins, 894 A.2d 716, 730 (Pa. 2006). Therefore, trial counsel’s decision

to attempt to minimize the brief reference to Acosta’s prison release was

reasonable. Id.; Koehler, supra. Accordingly, Acosta cannot show that trial

counsel’s action lacked a reasonable basis, and his claim fails. See Holt,

supra.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/1/2023

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