Com. v. Perez, R.

• Court: Superior Court of Pennsylvania
• Decided: November 9, 2022
• Docket: 1518 WDA 2021
• Status: Unpublished

Opinion

J-A18045-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERTO HERNANDEZ PEREZ : : Appellant : No. 1518 WDA 2021

Appeal from the PCRA Order Entered December 20, 2021 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000342-2017

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 9, 2022

Roberto Hernandez Perez appeals the denial of his Post Conviction Relief

Act (“PCRA”) petition. 42 Pa.C.S.A. §§ 9541-9546. He claims that he raised

meritorious claims of ineffective assistance of counsel. We affirm.

A jury convicted Perez of one count each of drug delivery resulting in

death and involuntary manslaughter; four counts each of possession with

intent to deliver and criminal conspiracy; and three counts of recklessly

endangering another person.1 We affirmed the judgment of sentence and

Perez did not seek allowance of appeal with our Supreme Court.2 See

Commonwealth v. Perez, No. 1361 WDA 2019, 2020 WL 6707506

(Pa.Super. filed Nov. 16, 2020) (unpublished memorandum). ____________________________________________

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2705, 903(a)(1), 2506, and 2504(a).

2 The PCRA court reinstated Perez’s direct appeal rights on August 8, 2019. J-A18045-22

In November 2021, Perez filed the instant, timely PCRA petition through

counsel. Perez alleged that trial counsel was ineffective for failing “to

adequately prepare for trial in advance in this matter, in that he did not

request funds for a forensic pathologist, request fund[s] for a private

investigator, or request a continuance of trial until it was too late.” PCRA

Petition, filed 11/15/21, at ¶ 13(d). He also argued that counsel’s failings

caused him prejudice, “as the evidence presented at trial regarding the drugs

provided by [Perez], their consumption by the decedent, other sources of

drugs, and the cause of death were contestable issues[.]” Id. at ¶ 13(e). He

also alleged that counsel prejudiced him in the following ways:

- [Perez] was unable to present information regarding other potential sources of fentanyl . . . .

- [Perez] was unable to present a forensic expert to counter the Commonwealth’s suspect evidence that the drugs obtained from [Perez] and ingested by the decedent were sufficient to cause his death . . . .

- . . . The Commonwealth’s evidence in these areas could have been countered by expert testimony and/or information regarding additional sources of fentanyl

- . . . the jury was not presented with any information to counter the Commonwealth’s case[.]

Id. at ¶ 13(f). Perez requested an evidentiary hearing for the court to hear

testimony from trial counsel and himself.

The court issued notice of its intent to dismiss the petition without a

hearing. See Pa.R.Crim.P. 907(1). The court stated that Perez had failed to

“outline in his petition the specific evidence that would have been presented

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at trial had his counsel obtained a continuance and obtained an expert and

private investigator.” See Opinion and Order, filed 12/7/21, at 3. Based on

this omission, it concluded that Perez had failed to show any prejudice from

counsel’s alleged error. See id. Perez filed a response arguing that he had

provided sufficient information in his PCRA petition. See Request for

Reconsideration, filed 12/17/21. The court denied Perez’s PCRA petition, and

this timely appeal followed.

Perez raises the following issue: “Did the lower court err in concluding

that [Perez’s] PCRA Petition failed to demonstrate prejudice as defined in

Commonwealth v. Little, 2021 PA. Super. 7, 246 A.3d 312 (Pa.Super. 2021)

and in summarily dismissing [Perez’s] PCRA Petition without a hearing?”

Perez’s Br. at 4 (suggested answer omitted).

When reviewing the denial of PCRA relief, we determine “whether the

PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Koehler,

36 A.3d 121, 131 (Pa.Super. 2012) (citation omitted). “[T]o obtain reversal

of a PCRA court’s decision to dismiss a petition without a hearing, an appellant

must show that he raised a genuine issue of fact which, if resolved in his favor,

would have entitled him to relief, or that the court otherwise abused its

discretion in denying a hearing.” Commonwealth v. D'Amato, 856 A.2d 806,

820 (Pa. 2004).

Perez maintains that considering Little, the court erred in concluding

that he did not prove the prejudice of his ineffectiveness claim. Perez alleges

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that trial counsel was ineffective for failing to hire a defense expert in

pathology and a private investigator to testify at trial. He maintains that he

suffered prejudice because the evidence presented at trial “regarding the

drugs provided by [Perez], their consumption by the decedent, other sources

of drugs, and the cause of death were contestable issues,” and the

Commonwealth’s evidence on these points was “weak, inconsistent,

inconclusive, and challengeable[.]” Perez’s Br. at 12.

Counsel is presumed effective; therefore, Perez was required to plead

and prove that his ineffectiveness claim had arguable merit, counsel’s action

or inactions lacked any reasonable basis, and he was prejudiced by counsel’s

error. See Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012). Where

a PCRA petitioner claims counsel was ineffective for failing to call a witness at

trial, to establish prejudice, the PCRA petitioner must plead and prove that:

(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew, or should have known, of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014) (citing

Sneed, 45 A.3d at 1108-09). “[T]he PCRA petitioner must show how the

uncalled witnesses’ testimony would have been beneficial under the

circumstances of the case.” Commonwealth v. Johnson, 966 A.2d 523, 536

(Pa. 2009) (citation omitted). Failing to satisfy any prong of an ineffectiveness

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claim results in the rejection of the claim. See Commonwealth v. Martin, 5

A.3d 177, 183 (Pa. 2010).

Because Perez limits his argument to the prejudice prong of his

ineffectiveness claim, we likewise focus our attention on this prong. In his

PCRA petition, Perez claimed that counsel failed to call a defense expert

witness in pathology as well as a private investigator. He claimed that he

suffered prejudice from counsel’s inaction because if counsel had called these

witnesses, they would have been able to “provide additional information as to

whether or not the Commonwealth’s expert’s findings were inaccurate” and

provide “possible alternative sources of fentanyl.” PCRA Pet. at ¶¶ 13(b)(ii),

(c)(ii). However, he did not identify any expert witness who was available to

testify on his behalf at trial. Nor did he identify a private investigator or allege

any particular evidence an investigator would have unearthed.

The court determined that Perez failed to establish the prejudice prong

of the ineffectiveness test. It concluded that Perez made “general assertions

that he was prejudiced” but “failed, to outline in his [p]etition the specific

evidence that would have been presented at trial had his counsel obtained a

continuance and obtained an expert and private investigator.” Opinion and

Order, at 3.

We discern no abuse of discretion. Perez did not explain whether these

witnesses existed, were available and willing to testify, or that counsel knew

or should have known of their existence. See Wantz, 84 A.3d at 331. Perez’s

claim is one of mere speculation, as he did not identify any specific witness

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nor explain what evidence they would have testified to that would have

changed the outcome of the case. See Commonwealth v. Chmiel, 889 A.2d

501, 546 (Pa. 2005) (“Trial counsel’s failure to call a particular witness does

not constitute ineffective assistance without some showing that the absent

witness’ testimony would have been beneficial or helpful in establishing the

asserted defense”). Furthermore, Perez’s citation to Little is unavailing. We

note that he did not claim that the PCRA court erred in its determination based

on the holding of Little in his Rule 1925(b) statement, and the claim is

therefore waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii). Even if it

were not waived, Little would afford him no relief. The petitioner in Little

proved actual prejudice. 246 A.3d at 330. Here, Perez made no such showing.

Perez also maintains that counsel was ineffective for failing to timely

request a continuance of the trial. He alleged that this prejudiced him because

1) he was not able to present information on alternative sources of the

fentanyl; 2) he was not able to present expert testimony to counter the

Commonwealth’s evidence that the fentanyl provided by Perez was the cause

of the decedent’s death; 3) he was not able to counter the Commonwealth’s

expert testimony; and 4) the jury did not hear alternative evidence to counter

the Commonwealth’s case. PCRA Pet. at ¶¶ 13(f)(i)-(iv).

Here, trial counsel asked the court for a continuance of the trial 20 days

before the trial was set to begin. See Perez, 2020 WL 6707506 at *7. Counsel

alleged that he needed additional time due to the unavailability of a forensic

pathologist and due to new information, that he obtained that was exculpatory

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in nature. See id. Counsel maintained that he was too busy to investigate the

new information and needed to hire a private investigator. See id. He stated

that two weeks, however, would not be enough time for the investigator to

investigate the information. See id.

The trial court denied the request, stating that “it is unclear why efforts

to address the obtainment of and report of a forensic expert and private

investigator were not undertaken at an earlier date.” See id. (citing Trial Court

Opinion, 1/18/18, at 8-9). It also stated that counsel’s suggestion that the

private investigator could likely uncover beneficial information regarding the

source of the fentanyl was speculative. See id. The court maintained “there

is only [an] assertion that a witness may be found and he or she may have

valuable information; and, that vague assertion does not support the grant of

a continuance of trial.” See id. (quoting Trial Ct. Op. at 8-9). However, the

court did state that it would revisit and reconsider the request if it was

“supported by more specific assertions[.]” Id. (quoting Trial Ct. Op. at 8-9).

Counsel provided no further specificity.

As evidenced by the history of this case, counsel never specified the

witnesses or the information that would necessitate a continuance. Perez

again raises speculative claims that he could have presented information on

alternative sources of fentanyl, that the expert would have countered the

Commonwealth’s evidence regarding the cause of death, or that any

information, if found, would have countered the Commonwealth’s evidence.

Thus, he fails to show that but for the timing of counsel’s continuance request,

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there is a reasonable probability that the result of the proceeding would have

been different. As such, Perez failed to plead and prove prejudice and the

court did not err in denying this claim of ineffectiveness. There was therefore

no need for an evidentiary hearing, and the court did not err in denying his

request for one. See D'Amato, 856 A.2d at 820.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/9/2022

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