Com. v. Cuevas, N.

• Court: Superior Court of Pennsylvania
• Decided: January 17, 2025
• Docket: 644 MDA 2024
• Status: Unpublished

Opinion

J-S42015-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NELSON CUEVAS : : Appellant : No. 644 MDA 2024

Appeal from the PCRA Order Entered April 19, 2024 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000069-2019

BEFORE: LAZARUS, P.J., BECK, J., and BENDER, P.J.E.

MEMORANDUM BY LAZARUS, P.J.: FILED: JANUARY 17, 2025

Nelson Cuevas appeals from the order, entered in the Court of Common

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

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After our review,

we affirm.

The trial court summarized the history of the case in its opinion

addressing Cuevas’ post-sentence motions:

In October of 2018, [Cuevas’] 6-year-old stepdaughter, J.B., reported a “secret” to another family member. The “secret” was that [Cuevas] had performed oral sex upon her, touched her with his “private part,” and placed his “private part” inside her “thothe[,]”[1] causing her to be “hurted.” J.B. stated that she was 5-years of age when these events occurred.

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1 J.B. used the terms “thothe” and “dick” to refer to the male and female sexual organs, respectively. See N.T. Trial, 7/27/20, at 27–33, 35–36 (referencing Exhibits 6 and 7, marked diagrams of a girl and a boy). J-S42015-24

Police were summoned regarding the complaint on October 14, 2018. Angela Farrisi [] of Lebanon County Children and Youth Services agency (hereafter CYS) met with J.B. and other members of her family. As a result of initial information provided by J.B., Farrisi scheduled a formal forensic interview at the Lebanon County Children’s Resource Center (CRC). Forensic interviewer Violet Winter conducted an interview with J.B. on October 25, 2018. This interview was videotaped. It was also observed in real time by Detective Matthew Brindley of the Lebanon County Detective Bureau. During the interview, J.B. repeated her report that [Cuevas] sexually abused her.

On October 29, 2018, Farrisi and Detective Brindley interviewed [Cuevas]. [Cuevas] denied raping J.B. but acknowledged that he doubted J.B. would lie. [Cuevas] surmised that J.B. was mistaken and that it was actually her mother’s current boyfriend who sexually assaulted the young girl.

[Cuevas] was charged with numerous sexually[-]related offenses on December 13, 2018. Shortly thereafter, the Lebanon County Public Defender’s Office was appointed to represent [Cuevas]. Despite being represented, [Cuevas] filed numerous pro se pre- trial motions and appeals[, which the trial court denied and this Court quashed].

***

A jury trial was conducted as scheduled on July 27, 2020 and July 28, 2020. Following the trial, a Lebanon County jury found [Cuevas] guilty on all but one count lodged against him. Sentencing occurred on December 30, 2020. [The trial court] imposed a sentence of 20 to 40 years in a State Correctional facility. Thereafter, [Cuevas] filed post-sentence motions [on January 11, 2021, and amended post-sentence motions on January 29, 2021].

Trial Court Opinion, 6/7/21, at 2–8 (capitalization altered).

The trial court denied Cuevas’ post-sentence motions and this Court

affirmed his judgment of sentence. See Commonwealth v. Cuevas, 930

MDA 2021 (Pa. Super. filed June 13, 2022) (unpublished memorandum

decision). On March 15, 2023, our Supreme Court denied Cuevas’ petition for

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leave to file a petition for allowance of appeal nunc pro tunc. See Order,

3/15/23.

Cuevas filed the instant PCRA petition, pro se, on May 9, 2023. Court-

appointed counsel filed an amended petition alleging numerous claims of

ineffectiveness of counsel. The PCRA court held a hearing on April 18, 2024,

at which Cuevas appeared by videoconference. On April 19, 2024, the PCRA

court issued an order dismissing Cuevas’ petition. This timely appeal follows,

in which Cuevas raises the following claim for our review:

Did the [PCRA c]ourt err in not finding that [Cuevas’] prior [c]ounsel provided ineffective assistance while representing him prior to and at trial in the underlying matter?

Brief of Appellant, at 12.

In reviewing an order denying relief under the PCRA, this Court’s

standard of review is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error.

Commonwealth v. Hipps, 274 A.3d 1263, 1266 (Pa. Super. 2022).

Cuevas alleges that trial counsel was ineffective. To establish a claim

of counsel’s ineffectiveness, a petitioner must overcome the presumption that

counsel was effective by proving “(1) that the underlying claim has merit; (2)

counsel had no reasonable strategic basis for his or her action or inaction; and

(3) but for the errors or omissions of counsel, there is a reasonable probability

that the outcome of the proceedings would have been different.”

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citation

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omitted). “The failure to prove any one of the three prongs results in the

failure of petitioner’s claim.” Id.

Prior to reaching the merits of Cuevas’ claim, we must determine

whether the claim is waived for lack of development. The argument section

of Cuevas’ brief, excluding the single page containing boilerplate recitations of

this Court’s standard of review and the three-pronged Strickland2

ineffectiveness test, consists of a mere two pages. See Brief of Appellant, at

18-19. Cuevas’ argument contains only bald allegations, unsupported by legal

analysis or citation to caselaw, that: (1) counsel met with Cuevas only one

time; (2) counsel saw no need to hire an expert; (3) counsel “did not see the

need for” Cuevas’ efforts to secure a private investigator; and (4) the jury

selection process was “not conducted as usual and was not perfect.” See Brief

of Appellant, at 18-19. Additionally, Cuevas’ prejudice argument consists, in

toto, of the following conclusory statement:

The record in this matter clearly shows that [Cuevas] suffered prejudice as a result of prior counsel’s inaction. His jury was compromised as the process to select that jury was unusual and not perfect.

Id. at 19.

2 Strickland v. Washington, 466 U.S. 668 (1984) (to demonstrate ineffectiveness, petitioner must plead and prove that: (1) underlying legal issue has arguable merit; (2) counsel’s actions lacked objective reasonable basis; and (3) actual prejudice befell petitioner from counsel’s act or omission). See also Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (adopting holding in Strickland).

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“The failure to develop an adequate argument in an appellate brief may

result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v.

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (internal citation and

quotation marks omitted). Because Cuevas fails to develop any meaningful

legal argument, we hold that his claim is waived. See Commonwealth v.

Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015) (explaining appellant

“ha[d] made no effort whatsoever to discuss the applicable law or link the

facts of his case to that law” and concluding that “[h]is failure to develop a

coherent legal argument in support of his claim results in waiver of [the]

issue”); Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super. 2006)

(finding waiver where appellant “fail[ed] to offer either analysis or case

citation in support of the relief he seeks” and admonishing that “it is not this

Court’s function or duty to become an advocate for the [appellant]”).

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 1/17/2025

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