J-S42003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL FUENTES
Appellant No. 983 WDA 2013
Appeal from the PCRA Order May 13, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004167-2005
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 29, 2014
Appellant, Michael Fuentes, appeals pro se from the order entered May
13, 2013, by the Honorable Jeffrey A. Manning, Court of Common Pleas of
Allegheny County, which denied Fuentes’s petition filed pursuant to the Post
Conviction Relief Act.1 We affirm.
On direct appeal, a panel of this Court previously recounted the history
of this case as follows.
On the evening of February 18, 2005, Ronald Fehl and his fiancée, Shannon O’Kelley, were having an anniversary party. N.T., 7/25/07 at 57-61. The couple was there with Mr. Fehl’s cousin, Clifford Crotteau; their friend, Amanda Hippensteel; Mr. Fehl’s co-worker, Andrew Loeffler; and Ms. O’Kelley’s infant daughter. Id. at 58, 90, 104-105. While Mr. Fehl left for a brief period, two men pushed their way into the house; and one of the men, brandishing a gun, demanded the victims empty their ____________________________________________
1 42 PA.CONS.STAT.ANN. §§ 9541-9546. J-S42003-14
pockets and lie down on the carpet. Id. at 61. The men proceeded to remove items from the home to ransack it. Id. at 63, 73. Mr. Fehl eventually returned and was shot in the stomach by one of the intruders. N.T. 7/26/07 at 8. Both intruders eventually fled the residence. Id. at 11.
A short time after the incident, [Fuentes], who matched the description of the gunman, was apprehended while running down the street. Id. at 33-37. He was transported to the police station, and ultimately the robbery victims, Ms. O’Kelley, Ms. Hippensteel, and Mr. Loeffler, were taken to that same police station for more questioning. Id. at 47, 56. Mr. Fehl, the shooting victim, was taken to the hospital for treatment. Id. at 46.
At some point, according to Detective Scott Scherer, the victims saw [Fuentes], through the police station window, being processed. Id. at 58. During this encounter, none of the victims could positively identify [Fuentes]. Later that evening, a photo array was shown to the other victim, Mr. Fehl, and he positively identified [Fuentes] as the shooter. Id. at 63-66.
On July 17, 2007, defense counsel filed a motion to suppress the in-court identification based on the three witnesses who were not able to identify [Fuentes] at the police station as the perpetrator and based on a claim that the photo array shown to the fourth victim was unduly suggestive. The trial court denied the motion at the start of trial on July 25, 2007. Appellant was found guilty of [robbery, 18 Pa.C.S. § 3701(a)(1), aggravated assault, 18 Pa.C.S. § 2702(a)(1), burglary, 18 Pa.C.S. § 3502(a), violation of the uniform firearms act-firearm not to be carried without a license, 18 Pa.C.S. § 6106, and conspiracy, 18 Pa.C.S. § 903], and on October 29, 2007, the trial court sentenced [Fuentes] to an aggregate term of 180 to 360 month’s imprisonment.
Commonwealth v. Fuentes, 2107 WDA 2007 at 2-3 (Pa. Super., filed June
23, 2009) (mem. op.). On appeal, this Court affirmed Fuentes’s judgment
of sentence and the Pennsylvania Supreme Court denied allocatur on
December 1, 2009. See id.; Commonwealth v. Fuentes, 985 A.2d 218
(Pa. 2009) (Table).
-2- J-S42003-14
On September 1, 2010, Fuentes filed a pro se PCRA petition. Counsel
was subsequently appointed and directed to file an amended PCRA petition.
On March 12, 2013, appointed counsel instead filed a Turner/Finley no
merit letter and requested to withdraw. After reviewing the record and the
no-merit letter, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent
to dismiss. Fuentes filed a response to the PCRA court’s notice on March 27,
2013. The court entered a final order and allowed counsel to withdraw on
May 13, 2013. This timely pro se appeal followed.
On appeal, Fuentes raises a staggering 22 allegations2 of ineffective
assistance of counsel. See Appellant’s Brief, at 4-7.
We review the lower court’s denial of a PCRA petition as follows. “On
appeal from the denial of PCRA relief, our standard and scope of review is
limited to determining whether the PCRA court’s findings are supported by
the record and without legal error.” Commonwealth v. Edmiston, 65 A.3d
____________________________________________
2 “While criminal defendants often believe that the best way to pursue their appeals is by raising the greatest number of issues, actually, the opposite is true: selecting the few most important issues succinctly stated presents the greatest likelihood of success.” Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (citation omitted; emphasis added). This is because “[l]egal contentions, like the currency, depreciate through over issue.” Id. (quoting Robert H. Jackson, “Advocacy Before the United States Supreme Court,” 25 Temple L.Q. 115, 119 (1951)); see also, Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,” 129 (2d ed. 2003) (“When I read an appellant’s brief that contains more than six points, a presumption arises that there is no merit to any of them.”) (emphasis in original).
-3- J-S42003-14
339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v.
Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review is limited to
the findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the PCRA court level.”
Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted). In order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 PA.CONS.STAT.ANN.
§ 9543(a)(2). These issues must be neither previously litigated nor waived.
See 42 PA.CONS.STAT.ANN. § 9543(a)(3). “[T]his Court applies a de novo
standard of review to the PCRA court’s legal conclusions.” Commonwealth
v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).
To determine whether the PCRA court erred in dismissing Fuentes’s
claims of ineffectiveness of counsel, we turn to the following principles of
law.
In order for Appellant to prevail on a claim of ineffective assistance of counsel, he must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place … Appellant must demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).
-4- J-S42003-14
Moreover, “[w]e presume counsel is effective and place upon Appellant
the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d
1262, 1267-1268 (Pa. Super. 2008). “This Court will grant relief only if
Appellant satisfies each of the three prongs necessary to prove counsel
ineffective.” Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007).
Thus, we may deny any ineffectiveness claim if “the evidence fails to meet a
single one of these prongs.” Id., at 321.
Our review of Fuentes’s brief reveals that several of the 22 issues are
waived or abandoned on appeal. We will address these claims seriatim.
Fuentes first argues that all prior counsel were ineffective for failing to
request the preliminary hearing transcripts. The primary flaw of this
argument is Fuentes’s failure to support his claim with any evidence proving
that counsel did indeed fail to request the preliminary hearing transcripts.
Even if we were to assume prior counsel did not request the preliminary
hearing transcript as Fuentes claims, Fuentes fails to state with specificity
the manner in which he was prejudiced by this omission. Although Fuentes
alludes to “conflicting and inconsistent statements that took place during
trial,” Appellant’s Brief at 10, he does not cite a single inconsistent or
conflicting statement supporting his claim. As Fuentes has failed to provide
this Court with any specific instances of conflicting testimony or evidence,
we cannot establish whether Fuentes suffered any prejudice. Therefore, this
claim fails.
-5- J-S42003-14
The next two issues Fuentes raises on appeal concern the alleged
failure of all prior counsel to adequately contest the allegedly suggestive
photo array at the police station.3 Trial counsel filed a motion to suppress
the photo array identifications, and the trial court rejected that motion after
argument prior to trial. See N.T., Jury Trial Vol. I, 7/25/07 at 3-24. The
fact that counsel’s arguments were ultimately deemed by the trial court to
be unavailing does not render counsel’s performance deficient. Moreover,
the record reflects that counsel cogently argued the claims Fuentes now
raises on appeal regarding suppression of the police station identifications
before the trial court. Accordingly, we do not find counsel to have been
ineffective in this regard.
Fuentes next claims that all prior counsel were ineffective in failing to
object to witness Cliff Crotteau’s in-court identification of Fuentes. Fuentes
argues that the in-court identification lacked an independent basis and was
therefore unreliable. Although Fuentes provides no legal support for his
claim, we nonetheless find this argument to be unavailing. “An independent
basis is established when ‘the in-court identification resulted from the
3 To the extent that Fuentes argues counsel was ineffective for failing to adequately contest the in-person “show up” identification at the police station, this argument is meritless. As previously noted, the victims were unable to identify appellant when they saw him at the police station. Therefore, no identification took place and suppression was not warranted. The only positive identification of note occurred when the victim, Richard Fehl, identified Fuentes through a photo array.
-6- J-S42003-14
criminal act and not the suggestive [identification procedure].’”
Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super. 2011) (citation
omitted).
Here, Fuentes points to no evidence to suggest that Crotteau’s in-court
identification was the result of suggestive police techniques, such that an
independent basis for the identification was necessary. Moreover, Crotteau
testified that he recognized Fuentes as the gunman from the burglary
because “he was in my face.” N.T., Trial Vol. I, 7/5/07 at 116. As the in-
court identification had a sufficient independent basis, counsel had no basis
to object or otherwise challenge the identification. This claim fails.
In his fifth claim on appeal, Fuentes argues trial counsel was
ineffective for failing to request a jury instruction regarding Ronald Fehl’s
alleged consumption of drugs on the night the burglary occurred and the
possible effect drug use can have on the witness’s ability to accurately recall
events. Fuentes further argues that counsel was ineffective for failing to
acquire and review the victim’s medical reports, which indicated the victim
admitted to hospital staff that he used marijuana and alcohol on the night in
question.
Initially, we note that the record belies Fuentes’s claim that trial
counsel did not review the victim’s medical records. At trial, defense counsel
questioned the victim on his use of drugs and alcohol on the evening of the
burglary, and confronted the victim with the results of the medical records
-7- J-S42003-14
from the Allegheny General Hospital. See N.T., Jury Trial Vol. II, 7/26/07 at
20-21. The victim admitted that he imbibed alcohol and that drugs were in
his system, but despite best counsel’s efforts to strongly suggest otherwise,
the victim steadfastly denied that he was high on that evening. See id. at
21.
It is well-established that “the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced is free to
believe all, part or none of the evidence.” Commonwealth v. Slocum, 86
A.3d 272, 276 (Pa. Super. 2014) (citation omitted). It is uncontested that
the trial court instructed the jury on their duty regarding the credibility of
witnesses in general. Under the circumstances, we find that the jury was
sufficiently apprised of their duty to weigh the credibility of a witness when
confronted with conflicting evidence such that a special instruction was not
warranted. Fuentes suffered no prejudice by counsel’s failure to request a
more specific jury instruction in this regard.
In his sixth claim Fuentes argues that trial counsel was ineffective for
failing to challenge the Commonwealth’s motion in limine to preclude
evidence that the victim, Ronald Fehl, possessed a scale allegedly used for
weighing drugs. Generally, only relevant evidence is admissible, that is, “if
it logically tends to establish a material fact in the case, tends to make a fact
at issue more or less probable or supports a reasonable inference or
presumption regarding a material fact.” Commonwealth v. Kinard, 95
-8- J-S42003-14
A.3d 279, 284 (Pa. Super. 2014) (citation omitted). Here, Fuentes advances
no argument as to the relevance of the scale to this case and provides no
other admissible grounds for the introduction of the evidence. As there is no
merit to the underlying claim on which counsel’s ineffectiveness is
predicated, this argument fails.
Fuentes next claims that counsel failed to file or otherwise pursue
various pre-trial motions on Fuentes’s behalf. Fuentes provide no basis to
support his claim; rather, it appears this issue is another attempt to argue
that trial counsel did not adequately seek to exclude the photo array
identification. As we have already determined that counsel’s representation
was not deficient in this regard, we need not address this claim further.
Fuentes fails to provide any argument for the eighth issue he raises on
appeal, regarding counsel’s alleged failure to obtain the victim’s medical
records. Accordingly, we find Fuentes has abandoned this claim on appeal.
We additionally note that we have already determined that the record belies
this claim. See N.T., Jury Trial Vol. II, 7/26/07 at 20-21.
Fuentes next argues that all prior counsel were ineffective for failing to
seek suppression of the show up and photo array identification at the police
station because counsel was not present. “In Pennsylvania, a defendant has
a constitutional right to have counsel present during identification
procedures.” Commonwealth v. Kearney, 92 A.3d 51, 67 (Pa. Super.
2014) (citation omitted). “However, this right is triggered by the arrest of
-9- J-S42003-14
the accused.” Id. (citing Commonwealth v. DeHart, A.2d 656, 665 (Pa.
1986) (“To extend the Sixth Amendment right to counsel during
photographic identification proceedings to any person merely suspected of a
crime would be an unreasonable burden on law enforcement officials and on
the taxpayer, who in many instances must ultimately underwrite the cost of
such representation.”).
Here, Fuentes fails to establish that he was formally arrested prior to
the police station show up, and not, as the Commonwealth contends, merely
detained for investigation. At this point, Fuentes was not charged with any
crime and no indictment had been filed. “Appellant is not entitled to
constitutional relief based on mere unsupported speculation.” Kearney, 92
A.3d at 67 (citing Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa.
2009) (holding right to counsel attaches at initiation of adversary judicial
proceedings, generally at arraignment)). Moreover, as was done here,
allegedly suggestive identification procedures may be challenged through the
vehicle of a motion to suppress the evidence. Fuentes’s argument that all
prior counsel were ineffective for failing to raise this claim must therefore be
rejected.
The tenth claim Fuentes raises on appeal pertains to trial counsel’s
failure to object to the allegedly perjured trial testimony of Detective Scott
Scherer, regarding the number and location of the tattoos Fuentes had on
the night of the crime. From what we can gather from Fuentes’s rambling
- 10 - J-S42003-14
argument, Fuentes claims that he did have tattoos on his hands on the night
the burglary occurred, but that Detective Scherer did not note tattoos on the
perpetrator’s hands in his police report. When questioned regarding the
tattoos Fuentes had on his hands at the time of trial, Detective Scherer
testified that “[t]hose would have been most noticeable and those would
have been documented [in his report].” N.T., Jury Trial Vol. II, 7/26/07 at
126. Notably, Detective Scherer did not emphatically state that he did note
hand tattoos in his report. Simply put, we find no evidence that Detective
Scherer testified falsely, and therefor can discern no basis on which trial
counsel could have objected to this testimony.
Fuentes next argues trial counsel was ineffective for failing to question
a juror who admitted she was acquainted with Officer Erica Miller following
her testimony at trial. After Officer Miller’s testimony, juror number 7
indicated to the court that she realized that she went to high school with
Officer Miller’s brother and that, as a result, her ability to be impartial was
compromised. See N.T., Jury Trial Vol. II, 7/26/07 at 96-97. Thereafter,
juror number 7 was excused by the court and an alternate was appointed.
See id. at 99. The trial court quickly remedied the situation. Fuentes
suffered no prejudice—trial counsel had no reason to question the juror after
her dismissal. This claim fails.
Insofar as Fuentes provides no argument in support of issue number
12, we find that he has abandoned this claim.
- 11 - J-S42003-14
In issue number 13, Fuentes alleges that trial counsel was ineffective
for failing to seek the trial court’s recusal or other remedies for perceived
trial court bias. Other than mere conjecture, Fuentes provides no concrete
support or citations to the record to support his claim of trial court
impartiality or prejudice. He fails to provide any support for his bald claim
that the trial court’s actions in some way deprived Fuentes of a fair trial.
“[I]t is axiomatic that [trial] counsel will not be considered ineffective for
failing to pursue meritless claims.” Commonwealth v. Charleston, 94 A.3d
1012, 1024 (Pa. Super. 2014) (citation omitted). Accordingly, this claim is
without merit.
Fuentes next argues that trial counsel was ineffective for failing to file
post-sentence motions. Fuentes fails to cite any pertinent legal authority in
support of his claim in violation of Pa.R.A.P. 2119(b). Moreover, Fuentes
notably fails to argue that any post-sentence motion would have been of
merit. Fuentes fails to establish that he was prejudiced by counsel’s failure
to file such motions. See Commonwealth v. Reaves, 923 A.2d 1119,
1132 (Pa. 2007) (defendant alleging ineffective assistance of counsel for
failure to file post-sentence motions is not relieved of the burden of
establishing prejudice). Accordingly, this claim fails.
In issue number 15, Fuentes argues that pre-trial counsel was
ineffective for failing to communicate a plea offer. Fuentes provides no
support for his self-serving claim that a plea deal was offered by the
- 12 - J-S42003-14
Commonwealth prior to trial, and we find no evidence in the certified record
that a deal was ever offered. Counsel cannot be deemed ineffective for
failing to communicate a plea deal where none existed. This argument is
meritless.
In his next claim, Fuentes argues that trial counsel was ineffective for
instructing him to retake the stand on redirect in order to testify that he had
been incarcerated since his arrest. Fuentes argues that “[t]o purposely
place Fuentes on the stand to admit that he had been locked up for two and
a half years on these charges was very prejudicial.” Appellant’s Brief at 43.
The record reveals that trial counsel did elicit testimony from Fuentes that
he had been incarcerated in Allegheny County Jail since he was arrested on
February 18, 2005. See N.T., Jury Trial Vol. II, 7/26/07 at 115-116. He
also questioned whether inmates had access to tattoo equipment in prison,
to which Fuentes responded, “No, sir.” Id. at 116. Counsel’s questioning
clearly aimed to relay to the jury that Fuentes had the hand tattoos at the
time the burglary took place and thus impeach police and the victims who
did not note hand tattoos on the perpetrator of the burglary. As counsel
clearly had a strategic basis for eliciting this testimony from Fuentes on
redirect, Fuentes’s claim of ineffective assistance of counsel in this regard is
Insofar as Fuentes provides no argument in support of issue number
17, we find that he has abandoned this claim.
- 13 - J-S42003-14
Fuentes argues in issue 18 that all prior counsel were ineffective for
failing to contest the in-court identification by witnesses Amanda Hippensteel
and Shannon O’Kelley. Fuentes argues that the witnesses’ identifications
were tainted by the suggested police station show up. This claim is belied
by the record. Both Hippensteel and O’Kelley testified that they were unable
to see Fuentes clearly at the police station and thus were unable to identify
him at that time. Shannon O’Kelley testified that from her vantage point at
the station, the appellant’s back was facing her and she was unable to
identify him. See N.T., Jury Trial Vol. I, 7/25/07 at 76-77. Amanda
Hippensteel similarly testified that she was unable to identify the appellant
at the police station given her vantage point. See id. at 95-97.
As no identification occurred at the police station, we fail to see in
what manner the witnesses’ in-court identifications were compromised.
More importantly, both witnesses testified that they were able to identify
Fuentes based upon their clear observations of Fuentes as the perpetrator of
the burglary. Thus, we find a sufficient independent basis existed for the in-
court identifications. See Davis, 17 A.3d at 394 (“An independent basis is
established when ‘the in-court identification resulted from the criminal act
and not the suggestive [identification procedure].’” ). As this claim is without
merit, counsel cannot be deemed ineffective for failing to contest the
identifications on this ground.
- 14 - J-S42003-14
Fuentes next claims that trial counsel was ineffective for failing to
object to allegedly misleading remarks made by the Commonwealth during
closing. The citations to the transcript Fuentes provides in his appellate
brief, however, do not correspond to the closing arguments made at trial.
Given that Fuentes has failed to provide accurate record citations to the
prosecutor’s allegedly improper remarks, we are unable to analyze Fuentes
claims. Accordingly, this claim is waived. See Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (“We shall not develop an
argument for [the appellant], nor shall we scour the record to find evidence
to support an argument; consequently, we deem this issue waived.”).
Fuentes next argues that trial counsel was ineffective and generally
unprepared for trial. In advancing this argument, Fuentes relies generally
upon the myriad allegations of ineffective assistance of counsel detailed in
his brief. As we find all 22 of these claims to be without merit, this general
claim, too, must fail.
Insofar as Fuentes provides no argument in support of issue number
21, we find that he has abandoned this claim on appeal. As the argument
advanced in support of issue number 22 merely rehashes, ad nauseam,
Fuentes’s many qualms with the so-called police “show up” and photo array
identifications, we will not address this further.
In sum, none of Fuentes’s 22 claims of ineffective assistance of trial
counsel merit relief.
- 15 - J-S42003-14
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/29/2014
- 16 -