Com. v. Guerra, J.

• Court: Superior Court of Pennsylvania
• Decided: July 13, 2023
• Docket: 2395 EDA 2021
• Status: Unpublished

Opinion

J-S11023-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN C. GUERRA : : Appellant : No. 2395 EDA 2021

Appeal from the PCRA Order Entered November 8, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011956-2014

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 13, 2023

John C. Guerra appeals from the order denying his Post Conviction Relief

Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Guerra argues his trial

counsel and direct appeal counsel provided ineffective assistance and that the

PCRA court erred in denying his request for an evidentiary hearing. We affirm.

We have previously summarized the facts presented at Guerra’s bench

trial as follows.

[B]etween 2008 and 2010, Guerra recruited young women to work for him as prostitutes[ ]and assisted them in posting advertisements online to solicit customers for sex. He also provided cell phones for the women to use to contact customers, and hotel rooms; received money the customers paid the women in exchange for sex; and provided the women with drugs and money. Guerra knew the women were addicted to drugs, and he supplied them with large amounts of crack cocaine and heroin. He made the women work for days at a time without sleep, used violence and sexual violence to keep them from leaving or withholding money, and prohibited them from seeking medical J-S11023-23

attention. Several other men assisted Guerra, including Elton Cromwell, Eddie Mendez, and Dwayne Thomas.

Three victims, M.S., T.W., and A.H., testified at trial. Of note, A.H. testified that she was a minor when she began working for Guerra, and that when Cromwell and Guerra discovered she was a minor, she stayed at Guerra’s family home until Guerra made the decision that she would continue working. A.H. also testified that Cromwell went to her parents’ house after charges were filed against him, and that this made her feel scared.

The Commonwealth also presented the testimony of Detective Derrick Stigerts, whom the Commonwealth offered as an expert in human trafficking, and Trooper Michael Peterson. Trooper Peterson testified that during the course of his investigation, he viewed the contents of a laptop found at the hotel where A.H. was found, which contained images and advertisements, some of which were introduced into evidence. Trooper Peterson said he interviewed five women who had worked for Guerra in two different hotel rooms, including M.S., T.W., and A.H. Trooper Peterson stated that, through the investigation, he was able to identify the extent of Guerra’s involvement in trafficking and prostitution, as well as the three other men in the organization. Trooper Peterson testified that based upon his investigation, he had concluded that Guerra “was in charge of an illegal, corrupt organization[.]” N.T., 6/29/16, at 97.

. . . Trooper Peterson testified that “through interviewing witnesses that testified and did not testify, all of their statements were clearly identifying each individual’s roles in this organization. Some ladies put [Guerra] at the top of the pyramid.” Id. at 98. Trooper Peterson stated he “concluded that [Guerra’s] role was a leader of a corrupt organization, including prostitution.” Id. . . . The prosecutor then asked Trooper Peterson about his training and experience in the Organized Crime Unit, and his opinion as to why there was no financial trail implicating Guerra in the crimes. Trooper Peterson answered, “The head[s] of corrupt organizations always attempt to insulate themselves from their underlings ... because they don’t want to be implicated as being the ring leader.” Id. at 101.

Guerra presented the testimony of M.T. and R.H., the mothers of children by Guerra and Cromwell, respectively, who had worked as prostitutes. Both women testified that A.H. had worked for Cromwell, and not Guerra; that Guerra had never threatened or

-2- J-S11023-23

assaulted any of the women working for him; and that Guerra did not force anyone to stay against their will. M.T. further testified that Guerra and Cromwell were friends, but did not work together or share employees, computers, phones, or money, and that M.S. would steal from Guerra to support her drug habit.

Guerra testified in his own defense. He admitted he had sex with A.H. on the first night of her arrival, but denied that A.H. had ever worked for him, and asserted that A.H. had worked for Cromwell, who had decided to take her back to work after discovering her minor status. Guerra denied working jointly with Cromwell or anyone else. He admitted that T.W. and M.S. had both worked for him, and that he would buy drugs in bulk to supply to his employees. But he denied that he had forced any of the women to work, or had threatened them. He denied that he was violent toward T.W. or had raped M.S., and stated that he had only slapped M.S. with an open fist on one occasion, because she owed him money.

Commonwealth v. Guerra, No. 3438 EDA 2017, 2019 WL 1514217, at *1-

2 (Pa.Super. filed Apr. 8, 2019) (unpublished memorandum). The trial court

convicted Guerra of trafficking of a minor, trafficking of persons, conspiracy

to traffic persons, corrupt organizations, promoting prostitution, sexual

exploitation of a child, unlawful contact with a minor, corruption of a minor,

simple assault, criminal use of a communication facility, and possession of a

controlled substance with intent to distribute.1

At sentencing, the Commonwealth argued that Guerra’s prior record

score (“PRS”) was five, based in part on a South Carolina conviction for

possession of crack cocaine. See N.T., 5/4/17, at 5-7; see also 204 Pa.Code

____________________________________________

1 See 18 Pa.C.S.A. §§ 3002(b) (repealed eff. Sept. 2, 2014), 3002(a) (repealed eff. Sept. 2, 2014), 903, 911(b)(1), 5902(b)(1), 6320(a), 6318(a)(5), 6301(a)(1)(i), 2701(a), and 7512(a), and 35 P.S. § 780- 113(a)(30), respectively.

-3- J-S11023-23

§ 303.7(a)(3) (stating unenumerated felony convictions increase a PRS by two

points). The Commonwealth introduced a copy of Guerra’s criminal history

report from South Carolina, which the court admitted into evidence. Guerra

argued that the conviction was a misdemeanor and the court should therefore

calculate his PRS to be three, as reflected in the presentence investigation

report (“PSI”). The court agreed with the Commonwealth. It sentenced Guerra

to an aggregate of 37 to 74 years’ confinement. Guerra filed a post-sentence

motion challenging the weight of the evidence and the length of his sentence,

which was denied by operation of law.

Guerra appealed. In relevant part, he challenged the sufficiency of the

evidence supporting his convictions related to A.H., arguing that A.H. had

testified that she had worked directly and exclusively for Cromwell. Guerra

also asserted the evidence was insufficient to support the convictions related

to trafficking or conspiracy to commit trafficking. Id. at *2-*3. We rejected

the claims. See id. at *3 (citing trial court opinion). Guerra further argued the

court had incorrectly calculated his PRS. We found this issue waived, as

Guerra’s appellate counsel had not specified it in his Pa.R.A.P. 1925(b)

statement of errors and the trial court had therefore not addressed it in its

Pa.R.A.P. 1925(b) opinion. Id. at *4.2 We affirmed Guerra’s judgment of

sentence.

2 The other issues Guerra raised on direct appeal are not relevant to the instant appeal.

-4- J-S11023-23

Guerra timely filed the instant PCRA petition, his first, on February 13,

2020. The PCRA court appointed counsel, who filed an amended petition and

requested an evidentiary hearing. The PCRA court issued notice of intent to

dismiss the petition without a hearing and, after allowing Guerra an

opportunity to respond, dismissed the petition. This appeal followed.

Guerra raises the following issues:

I. Whether the PCRA court was in error in not granting relief on the issue that counsel was ineffective[.]

A. Whether appellate counsel was ineffective for failing to appeal the following issues:

a. Failed to specify there was an incorrect calculation of [Guerra]’s prior record score on his Rule 1925(b) Statement[.]

[b.] Failed to argue that Trooper Peterson’s testimony was based in part upon inadmissible hearsay[.]

[c.] Failed to argue the verdict was against the weight of the evidence[.]

[d.] Failed to argue that the Commonwealth improperly amended the Bill of Information[.]

B. Whether trial counsel was ineffective for failing to make a timely objection to A.H.’s testimony at the time of trial[.]

II. Whether the PCRA court was in error in failing to grant an evidentiary hearing on the above issues[.]

Guerra’s Br. at 8 (unnecessary capitalization omitted).

“Our standard of review is well settled. When reviewing the denial of a

PCRA petition, we must determine whether the PCRA court’s order is

supported by the record and free of legal error.” Commonwealth v.

Anderson, 234 A.3d 735, 737 (Pa.Super. 2020) (internal quotation marks

-5- J-S11023-23

and citation omitted). “The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record.” Commonwealth

v. Midgley, 289 A.3d 1111, 1118 (Pa.Super. 2023) (citation omitted).

I. Prior Record Score

Guerra first challenges the PCRA court’s rejection of his claim that direct

appeal counsel was ineffective for not disputing the PRS. He contends that the

trial court erroneously used a PRS of five, rather than three. He argues his

PRS was three because the PSI listed his South Carolina conviction for

possession of crack cocaine as a misdemeanor. According to Guerra, “[t]here

was no inquiry of the investigator who wrote the PSI as to what documents

the probation department had that indicated the offense was a misdemeanor.”

Guerra’s Br. at 16-17. Guerra asserts that while his trial counsel preserved

the issue at the sentencing hearing, his direct appeal counsel was ineffective

for failing to include the issue in his Rule 1925(b) statement, which resulted

in this Court finding it waived on direct appeal.

Counsel is presumed to be effective, and a PCRA petitioner bears the

burden of pleading and proving ineffectiveness by a preponderance of the

evidence. Midgley, 289 A.3d at 1119; 42 Pa.C.S.A. § 9543(a)(2)(ii). The

petitioner must establish “(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.”

Midgley, 289 A.3d at 1119 (citation omitted).

-6- J-S11023-23

The PCRA court determined that the underlying claim that the PRS was

incorrect lacked arguable merit. This was not error. The PCRA court’s Rule

1925(a) opinion cites a portion of the sentencing transcript in which the

prosecutor presented a copy of Guerra’s criminal history report documenting

Guerra’s South Carolina conviction for crack possession as a felony. See PCRA

Court Opinion, filed 9/2/22, at 8-9. The court explains that the claim that the

PSI correctly labeled that conviction as a misdemeanor lacked arguable merit

because Guerra had not produced any evidence substantiating his claim that

the conviction was a misdemeanor rather than a felony. See id. at 9 (citing

Pa.R.Crim.P. 902(D) (requiring PCRA petitioners to submit evidence or state

why it is not attached to petition). Neither the criminal history report from

South Carolina nor the relevant portions of the PSI are included in the certified

record. As Guerra failed to prove that his underlying claim had arguable merit,

he failed to establish that his appellate counsel was ineffective for waiving it

during his direct appeal.

II. Trooper Peterson’s Testimony

Guerra next argues that direct appeal counsel ought to have challenged

Trooper Peterson’s testimony on hearsay grounds. The PCRA court concluded

that Guerra’s appellate counsel was not ineffective for failing to raise the issue

on appeal, as Guerra’s trial counsel had failed to preserve it during trial. See

PCRA Ct. Op. at 11. The PCRA court also concluded that Guerra’s trial counsel

could not be found ineffective for failing to object to hearsay testimony offered

at a bench trial. See id.

-7- J-S11023-23

We agree. Guerra’s appellate counsel was not ineffective for failing to

raise an issue that had been waived by trial counsel. Even reading Guerra’s

brief generously as intending to argue that trial counsel was ineffective for

failing to object to Trooper Peterson’s testimony on hearsay grounds, Guerra

did not raise that claim below and moreover has failed to prove that it has

arguable merit. He has not specified, even generally, the portion of Trooper

Peterson’s testimony he believes consisted of hearsay. He has also failed to

prove prejudice. As we observed on direct appeal, “we presume that a judge,

sitting as finder of fact in a non-jury trial, disregards inadmissible hearsay

testimony.” Guerra, 2019 WL 1514217, at *6 (quoting Commonwealth v.

Dent, 837 A.2d 571, 582 (Pa.Super. 2003)). He is therefore not entitled to

relief on this claim.

III. The Weight of the Evidence

Guerra next argues that direct appeal counsel was ineffective for not

challenging his conviction for trafficking of a minor as against the weight of

the evidence. He points out that “[A.H.] testified that [Guerra] was not her

pimp and did not engage in any trafficking or profiteering from said minor.”

Guerra’s Br. at 19-20. Guerra argues A.H. testified that her activities were

managed by Cromwell, who collected the profits she made. Id. at 20. Guerra

asserts that there was only one witness who saw Cromwell and Guerra

exchange money on one occasion. Guerra further posits that his conviction for

corrupt organizations was against the weight of the evidence, as the

Commonwealth presented “no details of necessary conspiracy, profits, and so

-8- J-S11023-23

forth,” and that Trooper Peterson had testified “that it was a pretty small-scale

operation.” Id. Guerra argues that while trial counsel raised the weight issue

in a post-sentence motion, appellate counsel was ineffective for failing to

pursue it on appeal.

An appellant will only prevail on a challenge to the weight of the

evidence when the trial court abused its discretion in denying the claim.

Commonwealth v. Fallon, 275 A.3d 1099, 1107 (Pa.Super. 2022). The trial

court must determine in the first instance whether “certain facts are so clearly

of greater weight that to ignore them or to give them equal weight with all the

facts is to deny justice.” Id. (citation omitted). A new trial is warranted “when

the jury’s verdict is so contrary to the evidence as to shock one’s sense of

justice and the award of a new trial is imperative so that right may be given

another opportunity to prevail.” Id. (citation omitted).

The PCRA court—the same judge as presided over Guerra’s bench trial—

thoroughly reviewed the evidence and concluded that the underlying weight

claims failed and direct appeal counsel could not be found ineffective. See

PCRA Ct. Op. at 13-20. As the PCRA court explained, A.H. testified that it was

Guerra’s decision whether she should continue working, and that Cromwell

took this as an “order” from Guerra. See id. at 13-14 (quoting N.T., 6/28/16,

at 196). Also, Trooper Peterson testified regarding his conclusion that Guerra

oversaw the trafficking operation. See id. at 14. (citing N.T., 6/29/16, at 101).

The PCRA court’s conclusion that the weight claims lacked arguable merit is

supported by the record and free from legal error.

-9- J-S11023-23

IV. Amendment of the Bill of Information

Guerra argues that appellate counsel should have argued that the court

erred in allowing the Commonwealth to amend the Bill of Information to

include the charge of unlawful contact with a minor. He concedes that the

charge “evolved out of the same factual situation as the charges filed in the

original [complaint],” but claims that because the charge was added on the

first day of trial, he did not have adequate time to prepare a defense. Guerra’s

Br. at 23. Guerra asserts that his trial counsel filed a motion to dismiss the

additional charge, which the court denied, but that appellate counsel was

ineffective for failing to pursue the issue on appeal.

The PCRA court found this claim lacked merit because Guerra did not

explain the way in which the additional charge prejudiced his trial strategy.

See PCRA Ct. Op. at 22. We agree. Pursuant to the Rules of Criminal

Procedure,

The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

Pa.R.Crim.P. 564. Whether a defendant has been unfairly prejudiced by an

amendment involves consideration of:

(1) whether the amendment changes the factual scenario supporting the charges; (2) whether the amendment adds new facts previously unknown to the defendant; (3) whether the entire factual scenario was developed during a preliminary hearing; (4) whether the description of the charges changed with the

- 10 - J-S11023-23

amendment; (5) whether a change in defense strategy was necessitated by the amendment; and (6) whether the timing of the Commonwealth’s request for amendment allowed for ample notice and preparation.

Commonwealth v. Hoffman, 198 A.3d 1112, 1122 (Pa.Super. 2018)

(quoting Commonwealth v. Mentzer, 18 A.3d 1200, 1203 (Pa.Super.

2011)).

Even assuming trial counsel adequately preserved this issue such that

appellate counsel could have raised it on appeal,3 Guerra has failed to prove

that the amendment caused unfair prejudice. Guerra concedes that he had

notice of the relevant facts forming the basis for the charge,4 and has not

spelled out how he would have changed his trial strategy to defend against

the additional charge if he had had more notice, or any other way in which he

allegedly sustained prejudice. See Hoffman, 198 A.3d at 1122. This claim

fails.

V. A.H.’s Testimony

Guerra next argues his trial counsel was ineffective for failing to object

to A.H.’s testimony regarding her activities with Cromwell as irrelevant. He

contends there was no evidence establishing any conspiracy between himself

3See Mot. to Dismiss, 6/27/16, at 3-4 (arguing for dismissal of charges based on filing of amended information); see N.T., 6/28/16, at 152-54 (defense counsel arguing he did not have pre-trial notice of allegation that Guerra had sex with A.H.).

4We note that the transcript of the preliminary hearing is not included in the certified record.

- 11 - J-S11023-23

and Cromwell, and therefore the evidence of Cromwell’s guilt was not relevant

to the charges against him.

The PCRA court found this claim lacked merit because A.H.’s testimony

regarding Cromwell was “relevant in that it describe[d] [Guerra’s] order of

operations within the sex trafficking organization and demonstrate[d] one of

[Guerra’s] associate’s, Cromwell’s, role in the organization.” See PCRA Ct. Op.

at 23. It further observed that the testimony of M.S. and T.W. established that

Guerra was part of a conspiracy with Cromwell. See id. at 23-24.

The PCRA court’s determination is supported by the record and free from

legal error. On direct review, we concluded there was sufficient evidence to

support a finding of a conspiracy between Guerra and Cromwell, and to

support each of the charges related to A.H., despite A.H.’s testimony that she

considered Cromwell to be her employer. Thus, A.H.’s testimony regarding

Cromwell was relevant to the case against Guerra, and trial counsel was not

ineffective for failing to object to the testimony.

VI. Evidentiary Hearing

Guerra’s final argument is that each of his issues raises a question of

material fact, and the PCRA court therefore erred in failing to grant an

evidentiary hearing where Guerra could prove his claims.

This claim is meritless. An evidentiary hearing is not a fishing expedition.

Commonwealth v. Roney, 79 A.3d 595, 605 (Pa. 2013). A petition

requesting an evidentiary hearing must include a certification by each

intended witness outlining the substance of their proposed testimony, and a

- 12 - J-S11023-23

copy of any material documentary evidence. 42 Pa.C.S.A. § 9545(d)(1)(i);

Pa.R.Crim.P. 902(A)(15). Where a petitioner has not set forth issues of

material fact, the PCRA court need not hold an evidentiary hearing.

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018).

Guerra did not comply with the above requirements. Guerra did not

proffer how he would prove any material facts at an evidentiary hearing, name

the witnesses he would call, or identify exhibits he would offer as evidence.

The PCRA court therefore did not err in concluding that an evidentiary hearing

would serve no purpose.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/13/2023

- 13 -