J-S26035-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROGEL I. SUERO : : Appellant : No. 2568 EDA 2017
Appeal from the PCRA Order July 24, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001552-2013
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 22, 2018
Appellant, Rogel I. Suero, appeals from the order entered in the Court
of Common Pleas of Northampton County dismissing his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9545. We affirm.
This Court has previously set forth the underlying facts and procedural
history attendant to Appellant’s trial as follows:
On January 15, 2012, Suero, his co-defendant Rebecca Johnson, and two other individuals conspired to rob Johnson's grandmother, Carrie Smith. Ms. Smith suffered from preexisting medical conditions of the heart and lungs, including coronary artery disease, atrial fibrillation, and interstitial lung disease. Notes of Testimony (“N.T.”), 10/2/2013, at 107. In the early morning hours of January 15, 2012, Suero and an unknown individual entered Ms. Smith's residence. Ms. Smith called 911 and told the police officers who responded that she was awoken by two males entering her bedroom. N.T., 10/1/2013, at 11. Ms. Smith stated that one man wore a dark, hooded sweatshirt and that the other had blue surgical gloves on his hands. Id. at 12.
____________________________________ * Former Justice specially assigned to the Superior Court. J-S26035-18
The man wearing the sweatshirt told her to remain quiet, and he placed a pillow over her face. When he removed the pillow, he told Ms. Smith that she would not be harmed if she cooperated.
Ms. Smith reported that the man in the sweatshirt demanded to know the location of her safe, and that the other man searched through her dressers while she led the first man to her safe. Id. at 13. When she struggled to remember the safe's combination, the man threatened her, and Ms. Smith felt a cold, hard object against the back of her head, which she believed to be a firearm. Id. at 14. After she opened the safe, Ms. Smith remembered seeing the individual wearing the blue surgical gloves reaching into the safe and removing her belongings. The men took approximately $35,000.00 cash from the safe. After removing the contents of the safe, the men took Ms. Smith back to her bedroom, then fled from the residence.
Ms. Smith suffered a heart attack during or shortly after the robbery, and she was hospitalized several times over the subsequent weeks. On March 16, 2012, Ms. Smith died of exacerbation of congestive heart failure as a result of the heart attack suffered on January 15, 2012. N.T., 10/2/2013, at 131.
The Commonwealth's theory of the case was that Suero and Rebecca Johnson conspired to commit the robbery because they planned to travel to Colorado to purchase a large amount of marijuana, and that they needed a substantial sum of money to accomplish that goal. Brief for Commonwealth at 25. At trial, the Commonwealth called Steven Wilson as a witness, who testified that Suero and Johnson had attempted to solicit his aid in a marijuana distribution scheme. N.T., 10/1/2013, at 204. Mr. Wilson testified that the quantity of marijuana that Suero and Johnson sought to acquire would have a value of approximately $400,000.00. Id. at 210. The Commonwealth introduced this evidence to demonstrate the defendants' motive for the robbery, as it was “evidence tending to show that [Suero] and his co- defendant were in need of obtaining a substantial sum of money to make their marijuana purchase.” Brief for Commonwealth at 25.
Prior to trial, Suero moved to exclude Mr. Wilson's testimony as inadmissible evidence of prior bad acts pursuant to Pa.R.E. 404(b)(1). The trial court denied Suero's motion, finding that the evidence was relevant to motive and that the probative value of
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Wilson's testimony outweighed any prejudice to Suero. Suero also moved to exclude evidence of certain prison phone calls, during which Rebecca Johnson implicated Suero in the crimes. The trial court permitted the introduction of the calls, provided that the transcripts of the calls be redacted in a manner that would remove any reference to Suero.
On September 30, 2013, Suero and Johnson proceeded to a joint trial, which lasted for six days. During closing arguments, the attorney for the Commonwealth made several statements that Suero alleged to be inflammatory. After closing arguments were completed, Suero objected to the statements and moved for a mistrial, arguing that the assistant district attorney, inter alia, misrepresented testimony, stated her personal beliefs about the credibility of witnesses, and improperly commented upon Suero's demeanor during the trial. The parties agreed on a number of curative instructions, and the trial court proceeded to instruct the jury accordingly. The jury returned a verdict that same day, finding Suero guilty of the above-listed charges. Suero's co- defendant, Rebecca Johnson, was also convicted of numerous offenses in connection with the incident, and was sentenced to a term of life imprisonment.
On December 5, 2013, the trial court sentenced Suero to, inter alia, life imprisonment without the possibility of parole. On December 16, 2013, Suero filed post-sentence motions, which the trial court denied on March 24, 2014.
Commonwealth v. Suero, No. 1025 EDA 2014, unpublished memorandum
at *1–2 (Pa. Super. filed Feb. 23, 2015).
Suero timely filed a notice of appeal, and he asserted, inter alia, that
the trial court erred when it neither granted Appellant’s motion for mistrial nor
declared a mistrial sua sponte for inflammatory prosecutorial remarks and
conduct at closing. This Court deemed the first part to Appellant’s issue
waived, as counsel agreed to withdraw the motion for a mistrial in exchange
for a curative instruction. Specifically, the instruction directed the jury to
disregard completely the prosecutor’s comments about what a prospective
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witness might have said and which witnesses were believable, as it was for
the jury, alone, to determine credibility. Moreover, after the court gave the
desired instructions, counsel failed to make a timely and specific objection
that the instruction inadequately addressed his concerns, we observed.
Regardless of counsel’s withdrawal of the mistrial motion, Appellant
argued in the alternative, the court was obligated to sua sponte declare a
mistrial given the manifest necessity for one created by the prosecutor’s gross
misconduct. This argument, we noted, “ignores a defendant’s role in
determining the best course of action in response to an allegedly prejudicial
event.” Id. at *5. Moreover, we concluded that Appellant still received a fair
trial notwithstanding any culpability of the prosecutor in mischaracterizing the
victim’s statements to investigators. Though perhaps not entirely accurate,
the characterizations were not designed to deprive Appellant a fair trial, did
not have the unavoidable effect of prejudicing the jury against Appellant, and
were addressed by the jury instructions.
As for the prosecutor’s stated personal opinion about the credibility of
Appellant’s testimony, we determined that the court sufficiently mitigated the
influence of the statement by both reminding jurors they were the sole judges
of credibility and declaring as “immaterial” any attorney opinion regarding the
believability of a witness. Id. at *8. The instruction, we found, was clear and
particular, and the law presumes a jury follows such instructions. Accordingly,
we discerned no reversible error with the court’s failure to declare a mistrial
sua sponte.
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Finding no merit to the remaining issues raised on direct appeal, we
affirmed judgment of sentence on February 23, 2015. Appellant filed a
petition for allowance of appeal to the Pennsylvania Supreme Court, which
denied Appellant’s PAA on July 21, 2015.
On March 25, 2016, Appellant filed his first PCRA petition. The PCRA
court appointed counsel, who filed an amended petition on June 13, 2016.
Appointed counsel informed the PCRA court, however, that Appellant desired
privately retained counsel instead, and, after a hearing on the matter, the
court granted Appellant’s request to retain new counsel. On October 6, 2016,
private counsel entered her appearance and requested both additional time to
file an amended petition and a continuance of a scheduled hearing on
Appellant’s petition, which the court granted.
Counsel filed her amended petition on January 30, 2017, and the court
conducted an issue-framing conference on February 10, 2017. A two-day
hearing on the issues raised in the amended petition commenced on May 8,
2017. The court thereafter accepted party briefs, and on July 24, 2017,
entered an order and opinion dismissing Appellant’s petition as devoid of
merit. This timely appeal follows.
Appellant presents the following questions for our consideration:
I. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS COUNSEL FOR FAILING TO INVESTIGATE AND TO RETAIN EXPERTS TO CHALLENGE CAUSATION AT TRIAL AND DID THE PCRA COURT ABUSE ITS DISCRETION IN DETERMINING, FIRSTLY, THAT THERE WAS NO PREJUDICE BECAUSE OF A JURY’S
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DETERMINATION IN ANOTHER CASE AND, SECONDLY, IN CREDITING TRIAL COUNSEL’S TESTIMONY THAT HE CONSULTED AN EXPERT TO CHALLENGE CAUSATION?
II. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS COUNSEL FOR FAILING TO CALL AN ALIBI WITNESS AT TRIAL AND DID THE TRIAL COURT ABUSE HER DISCRETION IN DETERMINING THAT LAUER WAS NOT AWARE OF THE WITNESS UNTIL AFTER TRIAL, THAT THE ALIBI WITNESS WAS NOT CREDIBLE, AND IN DETERMINING THAT THERE WAS A STRATEGIC REASON FOR NOT CALLING AN ALIBI WITNESS?
III. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS COUNSEL FOR WITHDRAWING HIS REQUEST FOR A MISTRIAL FOLLOWING PREJUDICIAL STATEMENTS BY THE PROSECUTOR AND DID THE TRIAL COURT COMMIT LEGAL ERROR IN DETERMINING THAT THE ISSUE WAS PREVIOUSLY LITIGATED ON DIRECT APPEAL?
IV. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS COUNSEL FOR FAILING TO OBJECT TO IMPROPER LEADING QUESTIONS BY THE PROSECUTOR?
V. WAS PETITIONER/APPELLANT ENTITLED TO RELIEF BECAUSE OF THE CUMULATIVE PREJUDICIAL EFFECT OF THE ERRORS IN THIS CASE?
Appellant’s brief at 4.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court's determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those findings.
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Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007). The PCRA court's
credibility determinations, when supported by the record, are binding on this
Court; however, we apply a de novo standard of review to the PCRA court's
legal conclusions. Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).
With respect to issues two through five, after careful review of the
record, the parties’ briefs, and the PCRA court’s opinion, we affirm on the basis
of the opinion by the Honorable Paula A. Roscioli. See PCRA Ct. Op. at 8-15
(concluding: (1) trial counsel was not ineffective for failing to call Mr. Sylvestre
as an alibi witness where counsel testified such an alleged alibi was not
brought to his attention during trial, and even if it had been, presenting alibi
would have allowed Commonwealth to introduce as rebuttal evidence
theretofore excluded evidence of Appellant’s cellular phone location data
putting him at the scene of the crime; (2) trial counsel was not ineffective for
withdrawing his request for mistrial on the basis of prosecutorial misconduct
stemming from the Commonwealth’s closing remarks;1 (3) counsel reasonably
elected against objecting to leading questions put to a medical expert as to
the medical cause of the victim’s death, as such evidence was irrelevant to
Appellant’s innocence defense; and (4) Appellant is not entitled to relief on his ____________________________________________
1 We agree with Appellant that our decision on direct appeal rejecting Appellant’s claim of prosecutorial misconduct on the merits does not render the present ineffective assistance claim “previously litigated” for purposes of PCRA review, see Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005) (deeming PCRA claims distinct from underlying substantive claims raised on direct appeal). Nonetheless, under the present facts, we discern no arguable merit to the present claim where counsel elected to withdraw his motion regarding comments not rising to the level of misconduct.
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claim of cumulative prejudicial effect of trial counsel’s error, as counsel’s
actions were not erroneous but were, instead, based on reasonable
strategies).
As for Appellant’s first issue asserting that counsel ineffectively failed to
retain a medical expert to challenge the Commonwealth’s theory pertaining to
the victim’s cause of death, we likewise adopt the trial court’s opinion rejecting
such claim, but we add to the discussion as follows.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, a petitioner is required
to make the following showing: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable strategic basis for his 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. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).
The failure to satisfy any prong of the test for ineffectiveness of counsel will
cause the claim to fail. Williams, supra.
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit....” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.” Taylor,
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supra at 1042 (quoting Commonwealth v. Poplawski, 852 A.2d 323, 327
(Pa.Super. 2004)).
Once this threshold is met we apply the “reasonable basis” test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In [Kimball, supra], we held that a “criminal defendant alleging prejudice must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
“The petitioner bears the burden of proving all three prongs of the test.”
Id. “Where it is clear that a petitioner has failed to meet any of the three,
distinct prongs of the... test, the claim may be disposed of on that basis alone,
without a determination of whether the other two prongs have been met.”
Commonwealth v. Basemore, 560 Pa. 258, 295, 744 A.2d 717, 738 n.23
(2000).
Appellant posits the PCRA court abused its discretion when it concluded
trial counsel was not ineffective for failing to challenge the Commonwealth’s
evidence that Appellant’s actions on the night of the robbery caused Ms.
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Smith’s death two months later. According to Appellant, trial counsel’s case
file showed that he recognized causation was a critical issue but failed to
conduct an adequate pre-trial investigation into the issue.
Alluding to counsel’s case file, Appellant avers that trial counsel
corresponded only once with a medical expert—Dr. John Shane, a forensic and
clinical pathologist, provided Dr. Shane with only Ms. Smith’s autopsy report,
and never received Dr. Shane’s opinion on causation. The PCRA court erred,
Appellant continues, by crediting trial counsel’s testimony that Dr. Shane did,
in fact, opine in a follow-up conversation with counsel that Ms. Smith’s heart
attack on the night of the robbery probably contributed to her death. The
record belied counsel’s testimony that such a conversation took place,
Appellant claims, because counsel’s otherwise “meticulous” case file includes
no notation of the purported follow-up conversation despite the great impact
it would have had on the defense. See Appellant’s brief, at 35.
Appellant also assails trial counsel’s failure to present to the jury the
threory, whether through cross-examination of the Commonwealth’s experts
or through direct examination of defense experts, that the robbery had no
effect on Ms. Smith’s pre-existing and progressively debilitating pulmonary
fibrosis, a condition which bore significantly on her cardiac health, Appellant
argues. On this point, Appellant refers to the PCRA testimonies of internist,
Edward D. Viner, M.D., and Cardiologist Arnold Meshkov, M.D., who each
pointed to Ms. Smith’s pulmonary fibrosis as the cause of her death.
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At the PCRA hearing, Dr. Meshkov testified that Ms. Smith had suffered
“a very mild heart attack” during the robbery, but she recovered with no
consequential heart damage. N.T. 5/9/17, at 81-82. Moreover, Dr. Meshkov
disputed the radiologist’s impression of congestive heart failure made from
Ms. Smith’s chest x-rays taken on her admission two weeks after the heart
attack. Instead, the x-rays depicted the progression of pulmonary fibrosis,
the scar tissue from which is often mistaken for congestive heart failure-
related fluid in the lungs, Dr. Meshkov opined. N.T. 5/9/17 at 83. Dr.
Meshkov, therefore, testified that had counsel retained him prior to trial, he
would have opined to a reasonable degree of medical certainty that Ms.
Smith’s death was caused by pulmonary fibrosis and not the heart attack she
sustained during the robbery. N.T. at 5/9/17 at 88-89.
Similarly, Dr. Viner testified that Ms. Smith’s idiopathic pulmonary
fibrosis evolved and progressed in a manner completely unaffected by the
trauma or emotions she experienced during the robbery. N.T. 5/9/17 at 114.
The shortness of breath Ms. Smith experienced two weeks after the robbery
was, therefore, in his opinion, a product of her pulmonary fibrosis and
unrelated to her fear and depression experienced after the robbery and heart
attack. N.T. at 120-123. Given the absence of the symptomology typically
associated with heart failure, Dr. Viner opined that Ms. Smith’s heart attack
of January 15, 2012, did not cause any damage to her heart. N.T. at 128. As
such, he concluded to a reasonable degree of medical certainty that Ms. Smith
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died from pulmonary fibrosis, and he confirmed he would have offered that
opinion at Appellant’s trial had counsel retained him. N.T. at 130-131.
Given both the conflicting record as to whether counsel’s expert ever
opined on causation, and the availability of other experts who would have
denied causation, Appellant asserts the PCRA court erred when it concluded
counsel employed a reasonable trial strategy causing no prejudice to
Appellant.
In response, the Commonwealth argues the record shows trial counsel
engaged in a reasonable investigation into the issue of causation. In counsel’s
49 years of practicing criminal law, he had retained Dr. Shane numerous times
for testimony regarding medical causation, the Commonwealth contends. See
Appellee’s brief, at 12 (citing N.T. 5/8/17 at 3, 15, and 50). Trial counsel was
quite specific in recounting Dr. Shane’s expert opinion, the Commonwealth
continues, that the Commonwealth could make “a very clear case that [the
robbery] was a very substantial contributing factor to [Ms. Smith’s] death.”
Id. (citing N.T. at 18). While Dr. Shane acknowledged a case could be made
for either side, counsel testified, the doctor nevertheless opined that the
medical evidence sufficed to prove the element of causation. Id. (citing N.T.
at 19). Trial counsel explained he, therefore, did not request a report from
Dr. Shane because that would have required him to produce what would have
been, at best, an unhelpful report, the Commonwealth notes. Id. (citing N.T.
at 19).
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In light of Dr. Shane’s unfavorable communication to counsel, the
Commonwealth posits, it was a reasonable strategy for counsel to focus the
jury’s attention on Appellant’s assertion of innocence. See Appellant’s brief,
at 13.
The Commonwealth also challenges the notion that Appellant suffered
prejudice from trial counsel’s chosen course. In so doing, the Commonwealth
relies on the PCRA court’s opinion that Appellant failed to demonstrate a
reasonable probability that the jury would have acquitted him of second-
degree murder had he actively investigated and advanced a causation
defense.
In reaching this conclusion, the PCRA court took judicial notice of the
trial of Quadir Taylor, Appellant’s cohort in the robbery of Ms. Smith. Taylor
faced the same charges as Appellant, but unlike Appellant, Taylor admitted
his participation in the robbery and chose, instead, to defend against the
murder charge solely on the issue of causation. Taylor sought to advance his
defense through the medical expert testimonies of Drs. Meshkov and Viner,
who rendered the same opinions at Taylor’s trial as they did at Appellant’s
PCRA hearing. Nevertheless, a jury convicted Taylor of second-degree
murder.
The PCRA court, therefore, came to the following conclusion with respect
to Appellant’s prejudice claim:
Given the outcome of the Taylor trial, we cannot conclude that there is a reasonable probability, had Attorney Lauer called Drs. Viner and Meshkov at [Appellant’s] trial, that the outcome of that
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proceeding would have been different. While it is possible that a different jury may have reached a different conclusion when presented with the same causation evidence as that presented at the Taylor trial, we are not concerned with that which is in the realm of possibility, but with that which is reasonably probable. Accordingly, [Appellant] has failed to establish that he was prejudiced by trial counsel’s failure to more strenuously pursue a defense on the issue of causation, and his petition must fail. [See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052 (1984) (setting forth prejudice standard in ineffectiveness claim)].
PCRA Court Opinion, 7/24/17, at 6.
Here, the PCRA court made a credibility determination in favor of trial
counsel and his assertion that he discussed the causation issue extensively
with Dr. Shane but obtained an unfavorable expert medical opinion from the
doctor that would not help the defense. Appellant asks us to undo the court’s
credibility determination because trial counsel did not document his discussion
with Dr. Shane in the case file as he had done with respect to other aspects
of the case. This purported inconsistency between counsel’s testimony and
his practice of documenting his work on the case undermines the reliability of
counsel’s testimony, Appellant maintains.
We disagree that trial counsel was under an obligation to corroborate
his testimony with a case file entry memorializing his conversation with Dr.
Shane in order to maintain credibility on this point. Indeed, counsel explained
in a related context that he deliberately declined to ask Dr. Shane for a written
report documenting the doctor’s observations and impressions so he would
not be compelled to turn over the potentially damaging report. The PCRA
court was free to conclude that counsel similarly preferred to leave his
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discussion with Dr. Shane undocumented, as well, as it represented a dead-
end for the defense.
Contrary to Appellant’s assertion, therefore, the record neither belies
counsel’s explanation for foregoing a more aggressive causation defense nor
demonstrates the unreasonableness of counsel’s strategic decision to
concentrate, instead, on an innocence defense. Under our standard of review,
as long as the chosen course had some reasonable basis designed to
effectuate the client’s interest, then our inquiry ceases. Pierce, supra.
Accordingly, we discern no abuse of discretion in the PCRA court’s rejection of
Appellant’s first ineffectiveness claim.2
Therefore, because we find no abuse of discretion or error of law with
the PCRA court’s order below, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/22/18
____________________________________________
2 Even if we addressed Appellant’s prejudice prong argument, which we need not do having found counsel employed a reasonable strategy, we discern no abuse of discretion reflected in the PCRA court’s rationale that Appellant failed to show a reasonable probability that Dr. Meshkov’s and Dr. Viner’s testimonies would have secured a favorable result for Appellant at trial.
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IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
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This matter has come before the Court on Defendant Rogel Suero's
supplemental petition for post-conviction collateral relief, filed January 30, 2017,
pursuant to 42 Pa.C.S. § 9541 et seq. Upon careful review, we find that Defendant
is not entitled to relief.
I. Factual and Procedural History
Defendant Rogel Suero (Defendant) was convicted on October 7, 2013,
following a jury trial, of the crimes of second degree murder, aggravated assault,
robbery, conspiracy to commit robbery, burglary, conspiracy to commit burglary,
criminal trespass, theft by unlawful taking, possession of instruments of crime,
terroristic threats, and recklessly endangering another person, all arising from
the home invasion robbery and later death of Carrie Smith. Ms. Smith was the
grandmother of co-defendant Rebecca Johnson. Defendant and Ms. Johnson were
tried at a joint trial. Quadir Taylor was also a participant in the robbery, and was
ultimately convicted of related charges after a jury trial on January 13, 2017.
�XHIBIT
j '5: David Bechtold, a then-juvenile defendant also involved in the robbery, entered
a guilty plea on related charges prior to the Suero/Johnson trial.
On December 5, 2013, Defendant was sentenced to a period of
incarceration in a state correctional institution for the remainder of his life,
without the possibility of parole, on the charge of second-degree murder. He was
further sentenced to 60-120 months on the charge of aggravated assault, an
additional 48-96 months on the charge of conspiracy to robbery, and an additional
9-24 months on the charge of possession of instruments of crime. No further
penalty was imposed for the remaining charges, all of which merged for
sentencing purposes.
Defendant filed post-sentence motions, all of which were denied by this
Court on March 24, 2014. On February 23, 2015, the Superior Court affirmed.
Defendant filed a petition for allowance of appeal to the Pennsylvania Supreme
Court, which was denied on July 21, 2015. On or about March 25, 2016,
Defendant filed a prose petition for collateral review pursuant to the Pennsylvania
Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Defendant was
appointed counsel and an issue framing conference was held on May 13, 2016.
Appointed counsel filed an amended petition on June 13, 2016. By way of
correspondence dated June 24, 2016, appointed counsel informed the Court that
Defendant wished to seek private counsel. A hearing was scheduled on
Defendant's PCRA petition for August 16, 2016, allowing Defendant time to retain
new counsel. On July 22, 2016, at Defendant's request, the hearing was continued
Page 2 of 15 to October 28, 2016. On October 6, 2016, present counsel entered her
appearance, and requested both an opportunity to file an additional counselled
petition and a continuance of the hearing. Counsel was granted an extension to
December 31, 2016 to file an amended petition, and the hearing was continued
generally. On or about November 21, 2016, counsel requested a further extension
to January 31, 2017, which was granted. The instant petition was filed January
30, -2017. An issue-framing conference was held February 10, 2017. A hearing
was held on May 8, 2017 and May 9, 2017. The Commonwealth submitted its
brief in opposition to the petition on June 8, 2017, and the Defendant submitted
his brief in support of the petition, after the grant of an extension of time, on June
22, 2017. The matter is now ready for disposition.
II. Discussion
A. Trial counsel was not ineffective in focusing the theory of the defense on Defendant's claim of innocence, nor in making strategic choices with that theory in mind.
In. the first issue in his petition, defendant contends· that trial counsel Philip
D. Lauer, Esq. was ineffective insofar as he failed to present a defense on the
issue of the cause of Carrie Smith's death. Defendant argues that while the
Commonwealth's medical expert opined that Ms. Smith's death, two months after
the robbery, was the ultimate result of a heart attack and related medical
complications occasioned by the robbery, other medical experts would have
testified that Ms. Smith's death was solely caused by medical conditions from
which she suffered prior to the robbery.
Page 3 of 15 In considering this issue, we begin with the notion that counsel is presumed
effective. Commonwealth v. Breakiron, 729 A.2d 1088 (Pa. 1999). In order to
prevail on his petition for collateral relief on the basis of a claim of ineffective
. assistance of counsel, Defendant bears the burden of establishing that his counsel
was ineffective, to such a degree that his ineffectiveness "so undermined the
truth-determining process that no reliable adjudication or guilt or innocence could
have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). Such a determination is made
utilizing the well-known tripartite performance and prejudice test as set out in
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), pursuant to which Defendant
must show (a) that the claim underlying his claim of ineffectiveness has arguable
I- merit, (b) that defense counsel's act or omission was not reasonably designed to
advance Defendant's interests, and (c) that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). Where
a defendant fails to establish even one of these factors, relief may not be granted.
Because we find that Defendant herein has failed to establish prejudice, we
must deny relief with respect to this particular claim. Prejudice must be
established by a showing that "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. Kimball, 724 A.2d 326, 333 (Pa. 1999).
Quadir Taylor was a codefendant of Defendant and Rebecca Johnson,
charged with the same crimes for which Defendant was convicted. At his trial in
Page 4 of 15 January 2017, Taylor admitted his participation in the home invasion robbery of
Carrie Smith, defending against the second-degree murder charge solely upon
the issue of causation .1 Again, it is the element of causation against which
Defendant herein contends that his trial counsel failed to effectively defend. In
pursuit of his defense, Taylor called Ors. Edward Viner and Arnold Meshkov to
testify. These are the same doctors proffered by Defendant in pursuit of the
instant petition. In their testimony at the Taylor trial, Drs. Viner and Meshkov
testified in substantially the same manner as they did at the hearing on the within
petition. Notably, both doctors testified at the hearing in this matter that their
testimony on that occasion was consistent with their testimony at the Taylor trial.
N .T. 5/8/17, pp. 98-99, 142. We note as an additional matter that Taylor's counsel
thoroughly cross-examined the expert witnesses for the Commonwealth at the
Taylor trial: See Commonwealth v. Quadir Taylor, CP-48-CR-00587-2016
(Northampton County 2017).
We take judicial notice sua sponte, pursuant to Pa.R.E. 201(c)(1), of the
conviction of Quadir Taylor for the second-degree murder of Carrie Smith
following a jury trial. The judicial record of that proceeding, including the trial
transcript, may be judicially noticed. Commonwealth v. Mutzabaugh, 699 A.2d
1289 (Pa. Super. 1997).
1 The delay between the Suero/Johnson trial in October 2013 and the Taylor trial in January 2017 was occasioned by the fact that Taylor remained unidentified to police until some time after the Suero/Johnson trial.
Page 5 of 15 �(
lJc,�I) I
e,-v-- 1...( // C'o,/{d Given the outcome of the Taylor trial, we cannot conclude that there is a
reasonable probability, had Attorney Lauer called Drs. Viner and Meshkov at
Defendant's trial, that the outcome of that proceeding would have been different.
While it is possible that a different jury may have reached a different conclusion
when presented with the same causation evidence as that presented at the Taylor
trial, we are not concerned with that which is in the realm of possibility, but with
that which 'is reasonably probable. Accordingly, D'efendant has failed to establish
that he was prejudiced by trial counsel's failure to more strenuously pursue a
defense on the issue of causation, and his petition must fail. Commonwealth v.
Strickland, supra at 694.
While Defendant's failure to establish prejudice, alone, is a sufficient basis
upon which we may deny post-conviction relief, we find as an additional matter
that Defendant's claim of ineffectiveness on this issue likewise fails, at a a,f\ c.y-- minimum, to establish one �rang of the performance portion of the Pierce test,
as we cannot conclude that Attorney Lauer's decision not to pursue a causation
defense lacked a reasonable basis. "[W]here matters of strategy and tactics are
concerned, counsel's assistance is deemed constitutionally effective if he chose a
particular course that had some reasonable basis designed to effectuate his
client's interests." Commonwealth v. Co/avita, 993 A.2d 874, 887 (Pa. 2010).
At the hearing on the within petition, Attorney Lauer testified that, in
preparing for trial, he evaluated the possibility of pursuing a defense on the issue
of causation, and ultimately elected, after reviewing the medical records and after
Page 6 of 15 consultation with an expert in the field of clinical pathology and with other
counsel, not to pursue such a defense. N.T. 5/8/17, pp.10-11, 17-18, 54. This
decision by Attorney Lauer was based largely upon the expert's conclusion that
there was sufficient medical evidence to show that the robbery was a "very
substantial contributing factor" to Ms. Smith's death. N .T. 5/8/17, p.18.
Strategically, Mr. Lauer believed that, because there was not a strong basis to
challenge causation, the loplcal course was to test the· Commonwealth's. experts
on cross-examination and otherwise focus the defense on Defendant's contention
that he was not involved, both through Defendant's testimony and a thorough
test of the credibility of the Commonwealth's fact witnesses who identified
Defendant as a perpetrator. N.T. 5/8/17, pp.21-22, 29.
Based upon the record before us, we cannot conclude that Defendant has
proven that trial counsel's strategic decision not to strenuously test the
Commonwealth's causation evidence was so unreasonable that "no competent
lawyer would have chosen it." Commonwealth v. Rega, 933. A.2d 997, 1018 (Pa.
2007). Furthermore, we conclude that trial counsel's choice not to strenuously
defend on the issue of causation had "some reasonable basis designed to
effectuate [Defendant's] best interests[.]" Commonwealth v. Speight, 677 A.2d
317, 322 (Pa. 1996). More specifically, we find that it was reasonable for trial
counsel to focus Defendant's assertion innocence, which he believed, in his
decades of experience, to have a significantly greater likelihood of success in this
case than a challenge to causation. The choice to focus on a stronger defense of
Page 7 of 15 innocence, in contrast to a weak defense on causation, was reasonable insofar as
it made the stronger defense all the more credible. See, e.g./ Commonwealth v.
Hawkins, 894 A.2d 716 (Pa. 2006) (trial counsel reasonable in not seeking alibi
instruction, so as not to draw attention to the weakness of the defendant's alibi
evidence); Commonwealth v. DeHart, 650 A.2d 38 (Pa. 1994) (trial counsel not
ineffective for admitting defendant was guilty of escape, in order to maintain
credibility in denial of guilt on other more serious charges); Commonwealth v,
Garcia, 535 A.2d 1186 (Pa. Super. 1988) (trial counsel not ineffective for pursuing
defense of innocence to homicide charge rather than presenting heat of passion
argument in support of voluntary manslaughter); Commonwealth v. McGrogan,
297 A.2d 456 (Pa. 1972) (trial counsel not ineffective in defending on the basis
of innocence rather than pursuing compromise verdict of voluntary
manslaughter).
Moreover, we cannot conclude that trial counsel's failure to object to
leading questions posed by the District Attorney to the medical expert witnesses
rendered counsel's representation of the Defendant ineffective. Again, counsel's
strategy was to focus on the Defendant's contention that he was not involved in
the robbery. To that end, the medical testimony regarding the causation of Ms.
Smith's death was not objectionable to the defense and, as Attorney Lauer
testified at the hearing on the instant petition, "since we weren't challenging it,
there was no harm done [in allowing leading questions] and, in fact, it got it over
quicker for her to just plow through the medical testimony." N.T. 5/8/17, p.37.
Page 8 of 15 This allowed the focus of the trial to lay largely on the question· of who was
responsible for the robbery, which was helpful to the chosen defense strategy.
Furthermore, as Attorney Lauer testified, "[y]ou don't object just because
something is leading. You object if there's a reason that you don't want it to come
out that way." N.T. 5/8/17, p.39. While questions on direct examination should
not be leading, there was nothing to be gained, in defense counsel's strategy, by
objecting to the Commonwealth's leading questions to its medical experts. For all
of these reasons, we find that Defendant's petition for post-conviction relief must
be denied with respect to trial counsel's decision not to pursue a causation
defense and his choice not to object to leading questions on direct examination.
B. Trial counsel was not ineffective in choosing not to present an alibi witness who was not credible, and whose testimony would likely have opened the door to damaging rebuttal evidence.
Defendant next contends that his trial counsel was ineffective in failing to
present the testimony of Emmanuel Sylvestre, who was allegedly able to provide
an alibi for Defendant insofar as Mr. Sylvestre contends that Defendant was at
home with him at the time of the robbery.
Mr. Sylvestre testified at the hearing in this matter. In that testimony, Mr.
Sylvestre indicated that he and Defendant became close friends in the months
prior to the robbery, spending time together every day. N.T. 5/9/17, p.144. Mr.
Sylvestre testified that he recalls spending the weekend with Defendant during
the time when the robbery occurred. N.T. 5/9/17, pp.146-147. More specifically,
Page 9 of 15 Mr. Sylvestre testified that he and Defendant closed the barbershop where
Defendant worked at 8:00 p.m. on the night of the robbery, they drove to
Defendant's apartment in Allentown, they ate and watched television, Mr.
Sylvestre fell asleep on the couch at 1: 00 a .m. after Defendant was asleep in his
own bedroom, and at 8:00 a.m. the following day they woke up and went back
to the barbershop. N.T. 5/9/17, pp.153-155.
Mr. Sylvestre testified that he assumed that Defendant would have told
I authorities that the two were together and that Mr. Sylvestre could provide an
alibi, and was surprised during the trial to learn that Defendant could not I specifically recall his whereabouts during the robbery. N.T. 5/9/17, pp.147-148.
I Mr. Sylvestre testified that, after the close of defense testimony, he approached
Attorney Lauer on two occasions and informed him of the alibi testimony he could
provide. N.T. 5/9/17, pp.149, 157.
Attorney Lauer did not call Mr. Sylvestre as a witness. When questioned
about his reasoning in not calling this witness, Mr. Lauer testified that Mr.
Sylvestre was not brought to his attention until after the trial, but that even if he
had been brought to his attention during the trial, he would likely not have called
that witness. N.T. 5/8/17, p.32. Mr. Lauer indicated that, because he had not
been made aware of an alibi witness prior to trial, he had not given notice of an
alibi witness, and would have had to seek relief from the alibi notice requirement
in order to call an alibi witness. N.T. 5/8/17, p.60. He chose not to seek such
relief due to his concern that the Commonwealth would seek, as a matter of
Page 10 of 15 rebuttal, to introduce cellular phone location information related to the location
of Defendant's phone just prior to, during, and just after the robbery, which
evidence had previously been excluded from the trial on account of late notice.
N.T. 5/8/17 pp.29-30, 32, 47-48, 60. Mr. Lauer was concerned about the
possibility of the cellular phone location evidence being admitted because it was
highly damaging to Defendant's theory of the case that he did not participate in
the robbery, given the proximity of Defendant's phone to the scene of the robbery
at the time it occurred. N.T. 5/8/17, p.32. Moreover, the testimony of Mr.
Sylvestre as to Defendant's whereabouts would have been inconsistent with the
cellular phone location evidence. Id.
We find this tactical decision on the part of Mr. Lauer to be eminently
reasonable. First, the late revelation of Mr. Sylvestre's proffered alibi testimony,
when he had ample prior opportunity to make such revelation, tended to color
the testimony with incredibility. We note that Mr. Sylvestre's testimony at the
hearing was further lacking in credibility in that his recollection of Defendant's
whereabouts appeared largely based upon what he recalled that he and
Defendant did on a routine basis rather than a specific recollection of the night
on which the robbery occurred. More significantly, Mr. Lauer's concern regarding
possible rebuttal evidence was valid, particularly given how closely it would place
Defendant's phone to the scene of the robbery during the time it was being
committed, which would only serve to damage the theory of the defense.
Accordingly, we conclude that trial counsel's decision in this regard had a·
Page 11 of 15 reasonable basis designed to protect Defendant1s interests, and Defendant's
petition on this point must therefore fail. See, e.g., Commonwealth v. Peterkin,
649 A.2d 121 (Pa. 1994) (trial counsel not ineffective for failing to call mitigating
character witnesses at a capital sentencing proceeding where he held legitimate
concerns that the cross-examination of those witnesses would be damaging to
the defendant).
C. The Superior Court has previously concluded that Defendant was not prejudiced by any alleged prosecutorial misconduct. Insofar as Defendant has raised herein an issue of prosecutorial misconduct that was not ruled upon by the Superior Court, there is insufficient evidence of record for this Court to rule on the merits.
I Defendant next contends that trial counsel was ineffective in withdrawing
a motion for a mistrial, which motion had been made following allegedly
inappropriate and prejudicial comments by the Assistant District Attorney during
her closing argument. Because this issue has been previously lltlqated, we must
deny Defendant's request for relief.
At trial, following the Commonwealth's closing argument, counsel for
Defendant made a motion for a mistrial based upon a number of statements made
therein. After a lengthy conference in chambers between the Court and all
counsel, Attorney Lauer withdrew the motion, relying upon the curative jury
instructions proposed by the Court in moving forward with the trial. In his post-
sentence motion, Defendant nonetheless argued that he was entitled to a new
trial on the basis of the prosecutor's inappropriate closing argument. Based upon
Page 12 of 15 counsel's withdraw of the motion for a rnistrial, we concluded that the issue was
waived. On direct appeal, Defendant contended, in a related arqurnent, that this
Court erred in failing to sua sponte declare a mistrial on the basis of the
prosecutor's inappropriate remarks. The Superior Court, too, found that the issue
was waived as a result of counsel's presentation and later withdraw of the motion,
but, moreover, the Superior Court addressed the Defendant's claims of
prosecutorial misconduct on their merits and concluded, "after careful review"
and a thorough discussion of each issue, "that the Commonwealth did not commit
prosecutorial misconduct[.]" Commonwealth v. Suero, 1025 EDA 2014 (Slip op.
at p.9).
In reaching this conclusion, the Superior Court thoroughly addressed the
issues of (1) the prosecutor's alleged mischaracterization of the victim's
statement about the skin color of one of the persons involved in the robbery; (2)
the prosecutor's alleged statement of her personal opinion regarding the
credibility of the Defendant's testimony; (3) the prosecutor's alleged
mischaracterization of the testimony of witness Steve Wilson; and ( 4) the
prosecutor's allegedly improper suggestion to the jury that they consider the
demeanor of the Defendant during the playing of a 911 tape. The law regarding
a defendant's entitlement to relief in post-conviction proceedings is clear that
where a defendant's "claims were discussed thoroughly by [the Superior] Court
in a memorandum affirming [the defendant's] judgment of sentence" those issues
are considered '"finally litigated' and not subject to further review."
Page 13 of 15 Commonwealth v. Bond, 630 A.2d 1281, 1282 (Pa. Super. 1993), citing 42
Pa.C.S. § 9543(a)(3).
While Defendant has attempted in his petition to reframe the issue as a
question of trial counsel's ineffectiveness in withdrawing the motion for a mistrial,
it is abundantly clear that the heart of the issue is the same. Moreover, were we
to independently analyze Defendant's claim of ineffective assistance of counsel,
we would find that the underly'ing basis therefor lacks arguable merit, for the
same reasons discussed by the Superior Court on direct appeal.
One issue of prosecutorial misconduct raised by Defendant in his direct
appeal that was not addressed by the Superior Court on the merits was the issue
I of the prosecutor's alleged inappropriate display of an unredacted document to
I the jury during closing arguments. The Commonwealth concluded that it was "not
able to conduct a meaningful review of this claim of prosecutorial misconduct"
because Defendant had failed to develop the record on this issue. Suero, supra
at 8. While this issue was thus clearly not previously litigated on direct review,
Defendant has failed to develop the record on this issue any further on collateral
review, and accordingly we find that we are likewise unable to address this issue
on the merits.
For all of these reasons, we find that Defendant is entitled to no relief on
the issue of trial counsel's alleged ineffectiveness in withdrawing the motion for
a mistrial.
Page 14 of 15 D. Defendant is not entitled to relief in this matter based upon a claim of cumulative error.
Finally, Defendant makes a claim for relief based upon alleged cumulative
error during the course of the trial. A claim of cumulative error is a basis upon
which a defendant may be afforded post-conviction collateral relief.
Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). In order for a defendant to
be afforded relief on this basis, it must be determined that the cumulative
prejudicial effect of multiple errors, each of which alone did not prejudice the
defendant, is such that the defendant was prejudiced. Commonwealth v. Koehler,
36 A.3d 121 (Pa. 2012). However, where a defendant's multiple allegations of
error are rejected on the basis of the other two prongs of the Pierce test, there is
no basis upon which to accumulate errors. Commonwealth v. Sattazahn, 952 A.2d.
640 (Pa. 2008).
Because we have rejected each of Defendant's claims on these alternative
bases, Defendant can be afforded no relief on an accumulation claim. Id.
Moreover, based upon our review of the issues raised by Defendant herein, and
upon our consideration of the entire record in this matter, we conclude that
Defendant did in fact receive a fair trial, and that the effect of any errors that
may have occurred during the trial was harmless. Defendant is not entitled to a
new trial.
WHEREFORE, we enter the following:
Page 15 of 15 IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA No. C-48-CR-01552-2013 v. ROGEL I. SUERO,
Defendant.
OPINION OF THE COURT
AND NOW, this 24th day of July 2017, upon consideration of Defendant's
petition for post-conviction relief pursuant to the Pennsylvania Post Conviction
Relief Act, it is hereby ORDERED that the petition is DENIED in its entirety.
Defendant is hereby advised that he may file an appeal of this Order
within thirty (30) days of the date thereof.
BY THE COURT:
{o..,J. t. la e , 4 PAULA A. ROSCIOLI, J. 6-0 c/ o{.:/5.
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