lU\'c~MINAL DIVISION e~~R~:.9f~i?~lS COMMONWEAL TH OF 'LB~:1*'~-~ ,-'· ... PENNSYLVANIA NO. CP-38-CR-1253-2011 v. ROBERTO MONTALVO
APPEARANCES . t.
Megan Ryland-Tanner, Esquire For Commonwealth of Pennsylvania DISTRICT ATTORNEY'S OFFICE
John Gragson, Esquire For Robertc Montalvo
OPINION BY CHARLES. J .• Novemb!3r 4. 2014
Roberto Montalvo (hereafter "DEFENDANT") filed a Petition for
Post-Conviction Relief on June 13, 2014, after which we concluded that
his averments were wholly meritless. When we denied DEFENDANT's
Petition In an Order dated August 28, 2014, DEFENDANT appealed our
decision. We author today's Opinion in support of our conclusion that
DEFENDANT received effective assistance of counsel at his trial and
throughout his proceedings, and is therefore not entitled to post-
conviction relief.
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....... I. FACTS
On September 13, 2011, DEFENDANT was charged with multiple
sexual assault and drug charges stemming from incidents that occurred
from June 18, 2011 to.June 21, 2011. On June 21, 2011, a 17-year old
male (hereafter "A.T.") reported that he was sexually assaulted by a man
he knew as Roberto. He identified Roberto as DEFENDANT.
A.T. reported that he knew DEFENDANT for approximately three or
four months. He stated that he went to DEFENDANT's house on either
-June 18 or June 19 of 2011, and stayed with him until June 21, 2011. · He
reported that during the overnight hours of June 20, 2011 into June 21,
2011, DEFENDANT supplied him with beer and cocaine. He claimed that
he consumed approximately 12 beers and used cocaine with
DEFENDANT.
A.T. stated that while he was under the influence of alcohol and
drugs, DEFENDANT grabbed him and removed his clothing. He reported
that DEFENDANT licked his genitals and anal area, inserted A.T.'s penis
into his mouth, and inserted his penis into A.T.'s anus and mouth.
DEFENDANT also directed A.T. to touch his penis with his hand. He told
DEFENDANT that he did not want to do these acts, but DEFENDANT told
him to put a pillow over his face and "pretend he was with a woman."
A.T.'s parents transported him to the Good Samaritan Hospital,
where he was inspected by SAFE Nurse Vanessa Smith. The nurse
observed tears to A. T's anus. She performed a rape kit examination
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(Exh. 28), which indicated the presence of semen in A.T.'s anus. The
parties stipulated that the DNA profile rendered from the rape kit test
reflected a mixture of DNA "made up of [A.T.J and Roberto Montalvo."
N.T. p. 65. The stipulation further set forth that the probability of
randomly selecting an unrelated individual other than DEFENDANT who
possessed the DNA type he examined was "approximately 1 in 61
quintillion from the Caucasian population; approximately 1 in 3.3
sextillion from the African American population; and 1 in 27 quintillion
from the Hispanic population." N.T. p. 65; Exh. ·3, ·• « : • •
Officers with the Lebanon City Police Department were called to
the hospital in order to interview A.T. As a result of the Interview, a
search warrant was obtained for DEFENDANT's residence, located at
1421 Willow Street, Apt. 3, Lebanon, PA 17046. The purpose of the
search warrant was to look for evidence related to the sexual assault
described by A.T.
The search was conducted by Detective Keith Ulrich and Detective
Jonathan Hess on June 21, 2011. In the residence, the officers
encountered DEFENDANT and an individual by the name of Miguel
Lopez. During the search, the police located what appeared to be
cocaine, crack-cocaine, marijuana, and drug paraphernalia. Most of the
drugs were found hidden in the ceiling of the apartment: Additionally,
small street delivery-sized baggies were found in the apartment, as well
as a digital scale. Ultimately. 51 grams of cocaine were located within
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DEFENDANT's apartment, with an estimated value between $4, 1 oo.oo and $5,000.00. Officers also retrieved 28 grams of marijuana behind a
ceiling tile.
Attorney Elizabeth Judd (hereafter "TRIAL COUNSEL") of the
Lebanon County Public Defender's Office was appointed to represent
DEFENDANT at his trial. His trial was conducted on February 9 and 1 O
of 2012, after which a jury rendered the following verdicts:
Count Offense Verdict 1 Sexual Assault Guilty
2 Sexual Assault Guilty Possession with Intent to Deliver Guilty 3 Cocaine - In Excess of 1 O Grams Conspiracy to Commit Possession with Guilty 4 Intent to Deliver Cocaine - In Excess of 10 Grams Possession with Intent to Deliver Not Guilty 5 Marijuana Conspiracy to Commit Possession with Not Guilty 6 Intent to Deliver Marijuana
Indecent Assault Guilty 7 Corruption of Minors Guilty 8
9 Possession of Cocaine Guilty
10 Conspiracy to Possess Cocaine Guilty
11 Possession of Marijuana Guilty
12 Conspiracy to Possess Marijuana Guilty
13 Possession of Drug Paraphernalia Guilty
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Conspiracy to Commit Possession of Not Guilty 14 Drug Paraphernalia
Furnishing Alcohol to Minor Guilty 15
On March 27, 2012, this Court granted TRIAL COUNSEL's Motion
for Appointment of Conflict Counsel, and we appointed Attorney John
Ferry to represent DEFENDANT al his sentencing. On Ma.y 2, 2012, we
sentenced DEFENDANT to an. aggregate sentence of 1 O years 3 months
to 32 years in prison. Conflict counsel for DEFENDANT filed Post-
Sentence Motions on May 14, 20·12. That sarneday, DEFENDANT filed a
prose petition with this Court, requesting an extension of time to file his
Post-Sentence Motions. Noting that his attorney already filed these
Motions, we denied DEFENDANT's request. We ultimately denied
DEFENDANT's Post-Sentence Motions in an Order dated October 15,
2012. DEFENDANT appealed to the Superior Court on November 9,
2012, and the Superior Court affirmed our judgment of sentence on June
21, 2013.
On April 10, 2014, DEFENDANT filed a Petition for Post-Conviction
Relief, alleging ineffective assistance of counsel. He claimed that TRIAL
COUNSEL:
(1) Did not meet with DEFENDANT and did not fully discuss his
case with him;
(2) Did not advise him of a plea offer and discuss said offer with
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(3) Denied him the use of an interpreter;
(4) Denied him the right to help pick a jury in his case;
(5) Failed to impeach the victim with his prior criminal record; and
(6) Ref used to call the following witnesses, who were present at trial
and willing to be called as character witnesses:
(a) Ms. Ana Cruz
(b) Ms. Edme Alvarado
After Hearing, this Court concluded that DEFENDANT's averments
were meritless, and we Issued an ·Orde·r on August 28, 2014 denyrn·g hls'
Petition. DEFENDANT filed this appeal on September 29, 2014.
II. THE POST-CONV.ICTION RELIEF ACT
The Post-Conviction Relief Act (PCRA) provides for an action by
which innocent persons convicted of crimes that they did not commit and
persons serving illegal sentences can obtain relief. 42 Pa.C.S. § 9542.
The PCRA is the exclusive method by which collateral relief may be
obtained in Pennsylvania. Commonwealth v. Chester, 733 A.2d 1242,
1250 (Pa. 1999). To be eligible for relief under the PCRA, a defendant
must prove the following elements by a preponderance of the evidence:
(1) He must.prove that he has been convicted of a crime under the laws of
this Commonwealth and that he is serving a sentence of imprisonment,
probation or parole for a crime; (2) he must prove that the conviction
resulted from one of the enumerated errors listed in § 9543(a)(2); (3) he
must prove that the allegation of error has not been previously litigated or
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waived; and (4) he must prove that the failure to litigate the issue prior to
or during trial could not have been the result of any rational, strategic or
tactical decision by counsel. 42 Pa.C.S. ·§ 9543(a).
When a claim of ineffective assistance of counsel is raised,
additional principles apply. Trial counsel is presumed to be effective, and
the Defendant bears the burden of proving otherwise. Commonwealth v.
Lewis, 708 A.2d 497 (Pa.Super. 1998); Commonwealth v. Williams, 570
A.2d 75 (Pa. 1990). In order for a petiti.one r to establish a claim of
ineffectiveness of counsel, he 'must satisfy a three· prong test set forth by
the Pennsylvania Supreme Court in Commonwealth v. Pierce, 527 A.2d
973 (Pa. 1987). The Defendant must demonstrate that: (1) the underlying
claim is of arguable merit; (2) counsel's particular course of conduct did
not have some reasonable basis designed to effectuate the petitioner's
interests; and (3) but for counsel's ineffectiveness, a reasonable
probability exists that the outcome of the proceeding would have been
different. Commonwealth· v. Pierce, 527 A.2d 973 (Pa. 1987). If the
claim is without arguable merit, the Court's inquiry ends, because counsel
cannot be deemed ineffective for failing to pursue a meritless issue.
Commonwealth v. DIN/cola, 751 A.2d 197, 198 (Pa.Super. 2000).
Ill. DISCUSSION
We note at the outset that shortly after his first meeting with TRIAL
COUNSEL, DEFENDANT began petitioning this Court without TRIAL
COUNSEL'S .knowledge. On August 26, 2011, DEFENDANT signed a
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Waiver of Preliminary Hearing.' Despite this waiver, DEFENDANT filed a
pro se Motion on September 15, 2011, which he self-titled "Appeal of
Imposed Waiver of Preliminary Hearing." Therein, he complained about
TRIAL COUNSEL and lamented that she "took unwarranted advantage of
[DEFENDANT's] Inability to speak, read, and understand the English
language". DEFENDANT remained difficult throughout the proceedings,
and it therefore comes as no surprise to us that he files this rnerltless
appeal today by which he blames his conviction on TRIAL COUNSEL.
A. TRIAL COUNSEL did not meet with DEFENDANT and fully discuss the case with him. ·
DEFENDANT initially argues that TRIAL COUNSEL "never met with
him," and that she did not fully discuss his case with him so that he could
be fully informed of his circumstances and options. After review of the
documentation and in light of the Hearing testimony, we conclude that
this averment is meritless.
At his Hearing, DEFENDANT testified that he met with his lawyer
twice in prison, and discussed the case with. her one time before trial.
He claimed that TRIAL COUNSEL "never met with me." However,
DEFENDANT later .testified that he met with TRIAL COUNSEL on·
December 20. They discussed what he knew about the victim, other
witnesses, and the plea bargain. On cross examination, he explained
that he met with TRIAL COUNSEL "two times." He testified that the first
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meeting lasted approximately 15 minutes, and the second meeting lasted
approximate 5-1 O minutes.
TRIAL COUNSEL referenced her notes and scheduling record, and
explained that she met wlth DEFENDANT four times before trial. The
scheduling record indicates that she first met with DEFENDANT on July
18, 2011, at which time he requested that bail be reduced. When TRIAL
COUNSEL met with DEFENDANT on November 20, 2011, she discussed
the plea offer with DEFENDANT. At their December 20, 2011 meeting,
· DEFENDANT and TRIAL COUNSEL discussed the trial strategy. TRIAL
COUNSEL first mailed DEFENDANT a copy of his discovery on October
13, 2011, and later mailed DEFENDANT a letter on December 27, 2011
with supplemental discovery.
While DEFENDANT's testimony was unclear with respect to how
many times he and TRIAL COUNSEL met and discussed his case, TRIAL
COUNSEL based her testimony on scheduling records and
correspondence, which indicate that she met with DEFENDANT four
times and discussed the pertinent matters of his case. We find TRIAL
COUNSEL's chronology of events to be credible. We therefore·conclude
that TRIAL COUNSEL allotted adequate time to discuss the case with
DEFENDANT and prepare DEFENDANT'S case for trial. DEFENDANT'S
statements to the contrary are simply not supported by the record.
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B. TRIAL COUNSEC did not advise 'DEFENDANT of a plea offer and discuss said offer with him.
DEFENDANT claims that TRIAL COUNSEL did not advise
DEFENDANT of the possibility of a plea agreement. DEFENDANT was
ultimately sentenced to 10 years and 3 months to 32 years in prison.
DEFENDANT claims that he did not realize that there was a plea offer
available to him, pursuant to which he would serve 8 to 20 years in
prison in lieu of taking the matter to trial. He argues that TRIAL
COUNSEL did not inform _ .... ... him . of this.• .agreement, . and that ,. she. ... ,....should .. . _ . have explained all possibilities and circumstances to him so he could
make an informed decision of whether he wanted to take his case to trial
or plead.
TRIAL COUNSEL tells a different story. According to TRIAL
COUNSEL, DEFENDANT claimed that there was no sexual contact
between the victim and him, and that he insisted on going to trial even
after .TRIAL COUNSEL explained the plea offer to him. After the DNA
test indicated the presence of DEFENDANT's bodily fluids on the victim,
TRIAL COUNSEL "explained at great length what this all meant." She
explained the possibility of 10-20 years or more of prison if convicted,
and she also described to him the possibility of 8-20 years of
imprisonment pursuant to the plea agreement. Despite the DNA
evidence, DEFENDANT insisted that he wanted to take the matter to
trial.
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DEFENDANT's filings and .testimony repeatedly indicate that TRIAL
COUNSEL "never" communicated" the plea bargain to DEFENDANT.
However, the exhibits and correspondence from TRIAL COUNSEL show
that DEFENDANT was aware of the plea offer at least by January of
2012. TRIAL COUNSEL's testimony indicates that ·She explained the
plea bargain to DEFENDANT as early as her initial meeting with
DEFENDANT on July 18, 2011. DEFENDANT's averments conflict with
the evidence before us, and we find that TRIAL ·COUNSEL's testimony to
be cred·ible. .~. • r, •• ,..
Because we conclude that DEFENDANT was aware of the
Commonwealth's plea offer at least by January of 2012, we determine as
a fact that DEFENDANT chose to reject the Commonwealth's plea offer
and proceed to trial. DEFENDANT's argument therefore has no merit.
C. TRIAL · COUNSEL denied DEFENDANT the use of an Interpreter.
DEFENDANT argues that TRIAL COUNSEL denied him the use of an
interpreter during his court proceedings. At the Hearing, DEFENDANT
explained that an interpreter was not present at his initial meeting with
TRIAL COUNSEL. However, he later testified that there was a translator
present. for his second meeting, and he further mentioned that his
translator was present with him at trial.
We find that, other than the initial meeting at which DEFENDANT
communicated with TRIAL COUNSEL in English, OEFENDANT was
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afforded an interpreter tor altot his meetings with TRIAL COUNSEL and
at all subsequent court proceedings, including his trial. Exhibit E is
instructive in support of this conclusion. On September 12, 2011,· TRIAL
COUNSEL wrote a two-page letter to DEFENDANT, explaining that she
was "glad {DEFENDANT] clarified [his] understanding of the English
language," and that she was "surprised" by this news because
DEFENDANT had written to her twice in English and spoke to her for 15
minutes in English at the Preliminary Hearing. Additionally, he "applied
for Public Defender .servrces · usin·g . an English application ... When a. i
Spanish application was made available to [him]." She explained that in
the future, she would communicate with him through a translator.
Additionally, TRIAL COUNSEL testified that at her initial meeting
with DEFENDANT, TRIAL COUNSEL was clearly under the impression
that DEFENDANT spoke and understood English based on their
conversation. However, in the interest of caution, TRIAL COUNSEL
provided DEFENDANT with an interpreter through all subsequent
proceedings at his request.
We conclude that TRIAL COUNSEL followed through with her
statement and provided a translator for DEFENDANT. The testimony and
exhibits all clearly reveal that DEFENDANT had a translator present
through all proceedings except for his initial meeting with TRIAL
COUNS~L, during which time TRIAL COUNSEL was under the justified
impression that DEFENDANT spoke sufficient English. DEFENDANT
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. .. ~ . himself referred to his translator several times throughout his Hearing.
To conclude that DEFENDANT was "denied the use of an interpreter"
during his court proceedings would totally belie .the record of this case.
As such, we find that this allegation is meritless.
0. TRIAL COUNSEL denied DEFENDANT the right to help pick a iury. . . DEFENDANT argues that he was denied the right to help participate
In selecting the jurors. He testified that TRIAL COUNSEL and his
interpreter- told him to ·"be ·quiet" _dl:Jting the voir-;di·,e process, and 'that
some of the older Hispanic jurors could have helped him at his trial had
they been selected.
TRIAL COUNSEL is a skilled attorney who has tried hundreds of
criminal cases in Lebanon County on both the prosecutorial and defense
sides. Accordingly, TRIAL COUNSEL has extensive experience in the
voir dire process. TRIAL COUNSEL recalled that DEFENDANT was
agitated and combative during the jury selection process, and that she
had to ask him to calm down. She feared that his client's agitated
demeanor likely would not have helped him choose a favorable jury. We
cannot find TRIAL COUNSEL ineffective for telling DEFENDANT to
essentially "shut up" during th·e voir dire process.
We conclude that DEFENDANT 'was agitated during jury selection.
To the extent that he may not have actively participated in the voir dire
process, that was his own fault and not the responsibility of TRIAL Circulated 08/14/2015 03:37 PM
COUNSEL. At no . time .did TRIAL ~OUNSEL hinder or prevent
DEFENDANT from having input into the jury selection process.
Accordingly, we ·cannot . find TRIAL COUNSEL ineffective on these
grounds.
E. TRIAL COUNSEL failed to impeach the victim with his prior criminal record.
DEFENDANT argues that TRIAL COUNSEL failed to impeach the
victim. by presenting his prior criminal record to the Court. DEFENDANT
explains ·that the· victim in this case was found in New York wiUf a gun,
and that this was never reported in New York. He also explained that the
victim was guilty of a theft or robbery in Lebanon, and that the victim's
neighbor caught him selling drugs on camera. He argues that this
information would have impeached the credibility of the victim.
We note that. at no point did DEFENDANT testify that he relayed this
information to TRIAL COUNSEL. A criminal background check of the
victim indicated no criminal history. TRIAL COUNSEL indicated that she
was not aware of these supposed charges, and that had DEFENDANT
mentioned them, it might have been "helpful." Both TRIAL COUNSEL
and DEFENDANT testified that they discussed what DEFENDANT knew
of the victim prior to trial, and TRIAL COUNSEL testified that
DEFENDANT did not mention these potential charges against the victim.
The mere fact that DEFENDANT may have been aware of past allegedly
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bad acts committed by the victini does not create admissible
impeachment evidence.
Even _if TRIAL COUNSEL would have presented this Court with the
victim's criminal record to impeach his credibility, we conclude that this
would have had no bearing on the verdict. The DNA test indicated that
DEFENDANT's DNA was present inside of the minor victim's anus.
Additionally, pursuant to a valid search. police recovered large amounts
of drugs and drug paraphernalia from DEFENDANT's home. We are
confident that this strong evidence would have bsen-sutflctent for the jury
to find DEFENDANT guilty even if the victim's prior bad acts would have
been known and even if they would have been admissible.
We conclude that TRIAL COUNSEL gave DEFENDANT the
opportunity to provide information on the victim's criminal background.
DEFENDANT failed to do so, and this failure does not in,pugn TRIAL
COUNSEL's preparation for trial. We further conclude that, even if
DEFENDANT would have provided TRIAL COUNSEL with such
information, it would have had no effect on the outcome of his trial. As
such, we cannot conclude that TRIAL COUNSEL was ineffective on these
F. TRIAL COUNSEL refused to call character witnesses.
Finally, DEFENDANT argues that he tried to tell TRIAL COUNSEL
the names of the potential character witnesses. but she would not allow
him to do so. DEFENDANT explained in his filings and his testimony that Circulated 08/14/2015 03:37 PM
his character witnesses. would .. have shown· that DEFENDANT was not ·a
sexual predator. Because TRIAL COUNSEL failed to call these
witnesses, DEFENDANT argues that she provided · him with ineffective·
assistance of counsel.
The character witnesses proffered by DEFENDANT would have
merely communicated the self-serving opinion that DEFENDANT is not a
sexual predator. Such testlmony is not proper character evidence and
would not have been admissible at trial (.see Pa.R.·E. 404, "[e]vidence of
a person's character-or ·character trait is not admissible to prove- that ·on
a particular occasion the person acted in accordance with the character
or trait"). Additionally, we do not see how testimony suggesting that
Miguel Lopez was only residing with DEFENDANT for a short time would
have affected the outcome of DEFENDANT's case.
TRIAL COUNSEL stated that the information to which
DEFENDANT's character witnesses would have testified was improper . .
and they would not have been able to testify. It is for this reason that
she did not exchange contact information with them. We believe that
TRIAL COUNSEL came to the appropriate conclusion. Accordingly, we
will not declare her to be Ineffective.
IV. CONCLUSION
Frankly, DEFENDANT must realize that it was his own actions that
brought him into his prison cell today. In addition to everything outlined
above, this Court cannot forget that DEFENDANT'S DNA was found Circulated 08/14/2015 03:37 PM
within semen located on the body of the minor victim. DEFENDANT'S
current protestation· that his conviction was the fault of TRIAL COUNSEL
is both legally unsupportable and completely contrary to the mountain of
evidence that was presented against him at trial. DEFENDANT must now
take responsibility for his wrongdoings and stop blaming others for his
current incarceration.
Having determined that DEFENDANT's allegations are meritless, we
reject his arguments and conclude that his appeal should be denied. A
Court Order ·will be entered on today's date to 'transmlt DEFENDANT's
file to the Superior Court for their review.