Com. v. Mora, J.

• Court: Superior Court of Pennsylvania
• Decided: January 16, 2018
• Docket: 2194 EDA 2017
• Status: Unpublished

Opinion

J-S80004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JORGE PARAMO MORA : : Appellant : No. 2194 EDA 2017

Appeal from the PCRA Order June 2, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001850-2013, CP-15-CR-0003592-2013, CP-15-CR-0003856-2012

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED JANUARY 16, 2018

Jorge Paramo Mora appeals from the June 2, 2017 order denying him

PCRA relief. We affirm.

Appellant was found guilty, at a jury trial pertaining to three separate

criminal action numbers, of one count each of kidnapping, simple assault,

obstruction of justice, and terroristic threats, and two counts each of

unlawful restraint and witness intimidation. In September 2012, Appellant

lived in Georgia with Guillermina Nayeli Lopez, who was the mother of his

son J.M., and Ms. Lopez’s then fourteen-year-old sister, L.L. Due to the fact

that Appellant abused Ms. Lopez, Ms. Lopez and L.L. left Appellant’s

residence with J.M. and went to live in Pennsylvania with their siblings.

On September 16, 2012, Appellant arranged to see his son. Ms. Lopez

and L.L waited with J.M. at a McDonald’s in Kennett, Pennsylvania, for J-S80004-17

Appellant. Appellant arrived in a black Escalade, and Ms. Lopez and L.L.

entered the vehicle with J.M. because Appellant said that he was going to

take J.M. to a store. Instead, Appellant picked up two other men who were

also charged in connection with these events, Jeremy Neace and Johnny

Anglin. Immediately after retrieving Neace and Anglin, Appellant began to

strike and choke Ms. Lopez, telling her that “she was going to pay for leaving

him.” N.T. Trial, 11/5/14, at 113.

L.L. started crying and yelling at Appellant to stop. She attempted to

exit the car, but could not because the doors were locked. About one-half

hour later, the men pulled L.L. from the Escalade and left her on the side of

the road. When Ms. Lopez, who was frightened and crying, tried to exit the

car, Appellant grabbed her hair and would not let her leave. The three men

drove away with Ms. Lopez and J.M. still inside the vehicle. L.L. immediately

contacted police with her cell phone. Appellant was apprehended in Georgia

the following day, and Ms. Lopez and J.M. were released from his control.

After he was jailed for that criminal episode, Appellant sent Ms. Lopez

multiple letters. In some of those documents, Appellant made threats of

severe physical harm against Ms. Lopez and members of her family if she

cooperated in the prosecution. In other letters, he urged her to alter her

testimony in order to exonerate him.

At trial, Appellant claimed that L.L. was not restrained in his vehicle

and that Ms. Lopez voluntarily accompanied him to Georgia, but the jury

rejected that defense and convicted him of the above-delineated crimes.

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The sentencing court imposed a sentence of eight and one-half to eighteen

years incarceration. On May 23, 2016, we affirmed in part and reversed in

part, concluding that the evidence was insufficient to sustain the conviction

for obstruction of justice. Commonwealth v. Mora, 151 A.3d 1156

(Pa.Super. 2016) (unpublished memorandum). We did not order re-

sentencing, as no sentence had been imposed on that offense.

On June 30, 2016, Appellant filed his present, timely PCRA petition,

which was counseled. After a February 17, 2017 hearing, relief was denied

on June 2, 2017, and this timely June 27, 2017 appeal followed. Appellant

complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)

statement, and raises a single issue: “Whether the trial court erred in

denying and dismissing Appellant’s PCRA petition?” Appellant’s brief at 4.

More specifically, Appellant avers that trial counsel was ineffective in failing

to: 1) object or move for a mistrial after a police witness testified that

appellant and Ms. Lopez had a seven year relationship that had been

abusive; 2) object to the adequacy of the trial court’s curative instruction

given after a witness indicated that Appellant’s letters had been mailed from

prison; 3) cross-examine a police witness with the contents of an interview

that Neace gave to police; and 4) present Neace as a witness.

Initially, we note that, “Our standard of review for an order denying

post-conviction relief is limited to examining whether the PCRA court's

determination is supported by evidence of record and whether it is free of

legal error. The scope of our review is limited to the findings of the PCRA

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court and the evidence of record, viewed in the light most favorable to the

prevailing party at the trial level.” Commonwealth v. Smallwood, 155

A.3d 1054, 1059 (Pa.Super. 2017) (citations omitted). When analyzing an

ineffective-assistance-of-counsel claim, “we begin with the presumption

counsel is effective.” Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa.

2017). Additionally, in order to

prevail on an ineffectiveness claim, [the defendant] must satisfy, by a preponderance of the evidence, the performance and prejudice standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied Strickland by looking to three elements [a defendant] must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) appellant suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987).

Id. at 296-97.

Appellant’s first issue pertains to testimony from New Garden

Township Detective-Sergeant Keith Codwright. That witness reported that

he interviewed Ms. Lopez on the telephone after Appellant was arrested and

that,

She said her [sic] and the defendant had been together for about seven years. The relationship was not very good. They lived in Georgia. . . . After several years of an abusive relationship, she decided to leave [Appellant] with their son. Her brother travelled from Pennsylvania down to Georgia to pick them up and brought them back to Pennsylvania.

N.T. Trial, 11/5/14, at 170-71.

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Appellant faults counsel with not objecting to Detective-Sergeant

Codwright’s description of the relationship between Appellant and Ms. Lopez

as abusive. He complains that the indication that he abused the victim

before she left for Pennsylvania was prejudicial evidence of prior bad acts.

The following events are pertinent to an analysis of this issue. After the

detective made the statement in question, the trial court sua sponte offered

to give the jury a curative instruction and to inform the jury that it must

ignore the remark. It noted that Detective-Sergeant Codwright had reported

that Ms. Lopez told him that she left Appellant “because of an abusive

relationship, allegations of abuse.” Id. at 181.

Trial counsel declined the instruction, stating, “I wouldn’t ask for an

instruction because it would highlight it to the jury.” Id. The court

continued, “You don’t want a cautionary instruction?” Id. Counsel again

declined, repeating that it “would highlight” the term abusive. Id. Counsel

then discussed with Appellant whether he wanted a cautionary instruction

about the use of the word abusive, and counsel reported to the judge that,

“we are in agreement.” Id.

The matter was re-visited the following day, when the trial court again

offered to tell the jury to ignore the testimony about the abusive nature of

the relationship between Appellant and Ms. Lopez. Counsel responded that

he and Appellant were waiving the instruction, and reported, “I have

explained the pros and cons to the defendant. And I believe we at this point

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are making waiver of that instruction being given to the jury” so as not to

highlight it. N.T. Trial, 11/6/14, at 262. Appellant then stated, on the

record, that he agreed that an instruction to the jury to ignore the term

abusive should not be given. Id. at 263.

Accordingly, the record establishes that counsel had a reasonable

strategy for not asking for a curative instruction. Commonwealth v.

Pezzeca, 749 A.2d 968 (Pa.Super. 2000) (counsel was not ineffective for

neglecting to ask for curative instruction after jury saw the defendant in

shackles as counsel articulated a reasonable basis for not seeking the

instruction, explaining that he did not want to draw the jury’s attention to

the matter). Hence, the PCRA court did not abuse its discretion in

concluding that counsel was not ineffective for rejecting the trial court’s offer

to give a curative instruction as to the abusive-relationship statement.

Appellant next complains that trial counsel should have objected after

the trial court gave inadequate instructions when the jury was informed that

the letters that Appellant wrote to Ms. Lopez had a prison as the return

address. Appellant’s brief at 10. The trial court clearly explained to the jury

that Appellant’s incarceration was for “these offenses only, pre-trial

incarceration. That’s why [the prison] was the address. It’s only for these

offenses only, okay?” N.T. Trial, 11/5/14, at 182.

Appellant fails to establish how this instruction was inadequate. The

only improper implication that would have flowed from the fact that

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Appellant was imprisoned when he sent the threatening and then cajoling

letters to Ms. Lopez would have been that he was in jail for other criminal

activities. The instruction in question dispelled any notion that Appellant

was incarcerated for committing crimes other than the ones for which he

was being tried. The fact that Appellant was imprisoned prior to the jury

trial for the offenses at issue at trial was not prejudicial in nature. Hence, no

relief is due.

Appellant’s third averment on appeal is that trial counsel should have

cross-examined Detective-Sergeant Codwright regarding an interview that

Neace gave to police. Appellant asserts that, in that interview, Neace

maintained that Ms. Lopez knew that Appellant was coming to Pennsylvania

from Georgia, gave Appellant money to aid in his trip, communicated with

Appellant on his drive north, agreed to meet Appellant at the McDonald’s in

question, and never tried to escape during the many stops, which included

an overnight stay at a motel in South Carolina, during the trip back to

Georgia. Neace also claimed to police that L.L. was not kept against her will

in the Escalade, and was actually dropped off, with money and a cell phone,

at a drug store that was close to the McDonald’s where Appellant met with

the three victims.

Appellant observes that the contents of Neace’s interview supported

the defense that he presented at trial. Appellant suggests that trial counsel

was ineffective when he did not get the interview transcribed and failed to

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use it during his cross-examination of Detective-Sergeant Codwright.

Appellants brief at 12.

Neace’s interview was rank hearsay that Appellant now suggests could

have been introduced for the truth of the matter asserted by means of

cross-examining a police witness with it. Appellant is mistaken. As our

Supreme Court articulated in Commonwealth v. Baez, 431 A.2d 909, 912

(Pa. 1981) (emphasis added), a witness can be cross-examined on three

grounds:

(1) by showing that on a prior occasion he made a statement, either oral or written, that is inconsistent with his present testimony; (2) by competent evidence tending to show bias, bad character for truth and honesty, or defects in memory, perception or capacity or (3) by the competent contradictory testimony of other witnesses whose version of the facts differs from that of the witness being impeached[.]

Hearsay statements from other witnesses cannot be used, during cross-

examination, to contradict a witness’s version of events. Id. Moreover,

Detective-Sergeant Codwright did not testify about any of the events

occurring in the vehicle or surrounding Ms. Lopez’s trip from Pennsylvania to

Georgia. The impeachment in question, which was Neace’s version of what

transpired, was not a proper subject of impeachment of the police officer.

First, it did not constitute a prior inconsistent statement from Detective-

Sergeant Codwright. Likewise, Neace’s interview did not demonstrate

Detective-Sergeant Codwright’s bias, poor character for telling the truth, or

defects in his memory, perception or capacity. Finally, the statement in

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question did not, in any manner, contradict Detective-Sergeant Codwright’s

direct testimony since he did not testify regarding the events contained in

Neace’s police interview. Additionally, the interview constituted inadmissible

hearsay and could not have been used to impeach Detective-Sergeant

Codwright, even if he had testified as an eyewtiness. As trial counsel would

not have been permitted to conduct the cross-examination proposed by

Appellant, counsel was not ineffective in this respect.

Appellant’s final position is that trial counsel was ineffective for failing

to interview and present Neace as a witness in support of Appellant’s

claimed defense that neither victim was held against her will in the Escalade

and that Ms. Lopez voluntarily went to Georgia with Appellant.

A claim that counsel was ineffective for failing to call a potential expert witness to testify at trial requires a petitioner to establish that the witness existed and was available, that counsel was informed of the witness' existence, that the witness was ready and willing to testify, and that the absence of the witness prejudiced the defendant to a point where the defendant was denied a fair trial.

Commonwealth v. Smith, 167 A.3d 782, 793 (Pa.Super. 2017) (citation

omitted).

In the present case, Appellant’s position is untenable because Neace

pled guilty in connection with his role in the criminal episode of September

16-17, 2012, and, by entering that plea, directly contradicted the contents

of his police interview. Concomitantly, there can be no proffer that Neace

was ready and willing to testify on Appellant’s behalf in a manner that was

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consistent with police statement. Thus, the PCRA court did not abuse its

discretion in refusing to find trial counsel was ineffective for not interviewing

Neace and presenting him at trial on Appellant’s behalf.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/16/18

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