Com. v. Tejeras, J.

• Court: Superior Court of Pennsylvania
• Decided: May 18, 2026
• Docket: 1001 MDA 2025
• Status: Unpublished
• Author: Stabile

Opinion

J-S45015-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSE CEFERINO TEJERAS : : Appellant : No. 1001 MDA 2025

Appeal from the PCRA Order Entered July 8, 2025 In the Court of Common Pleas of Berks County Criminal Division at No: CP-06-CR-0000072-2021

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED: MAY 18, 2026

Appellant, Jose Ceferino Tejeras, appeals from an order denying his

petition for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

The following evidence was adduced during trial:

On September 28, 2020, Jose Lopez (“Lopez”) was operating his vehicle in the 500 block of Locust Street, Reading, Berks County[.] While in his vehicle, Lopez observed [Appellant] standing near the home of Yesenia Salva, [Appellant’s] sister and the mother of Lopez’s three children.1 [Appellant] was in possession of a large, black bag. As Lopez approached [Appellant’s] location, [Appellant] disappeared between some cars and then there was a gunshot. After Lopez drove through the 500 block of Locust Street, he noticed a bullet hole in the driver’s side door of his ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The record reflects that Salva was Lopez’s ex-girlfriend and the mother of

his three children. Lopez and Salva had an abusive relationship. Appellant is Salva’s brother, and Appellant and Lopez had an argument two months before the date of the shooting because Appellant struck Lopez’s 10-year-old son. J-S45015-25

vehicle. Lopez also sustained a gunshot injury to his right leg which required medical treatment.

Lopez did not point a gun at [Appellant] or threaten him with a gun as he drove by. Law enforcement responded to the scene and discovered a rifle shell casing between two vehicles in that block. An additional casing was located in a nearby alley. During their investigation, law enforcement officers recovered surveillance video from the area. One of those videos was from the morning of the shooting and showed [Appellant] in possession of a soft rifle case. Two additional videos captured the shooting. Those videos showed [Appellant] retrieving a firearm and hiding between two vehicles in the 500 block of Locust Street as Lopez’s vehicle approached [Appellant’s] location. As Lopez drove by [Appellant], a loud bang can be heard on [one of] the video[s]. The video showed that Lopez did not point a gun at [Appellant] as he went by him. There were also pictures taken of Lopez’s vehicle which showed that the exterior and interior bullet holes were consistent with the bullet entering the vehicle from the outside. The police [n]ever locate[d] the gun used by [Appellant].

On December 29, 2020, [Appellant] was interviewed by the police regarding the incident that occurred on September 28, 2020. [Appellant] was read his Miranda warnings and agreed to speak with the officers. During the interview, [Appellant] stated that he felt as though Lopez was trying to intimidate him. [Appellant] admitted that he saw Lopez’s vehicle driving by and that he crouched down near his sister’s house and took one shot at Lopez’s vehicle with an AK-47 rifle. He said that he had no regrets and refused to be intimidated. When asked about the current location of the AK-47 rifle, [Appellant] told the police that he returned the weapon to its owner. At trial, [Appellant] testified and admitted to shooting at Lopez’s vehicle and stated that he lied to the police about giving the firearm to a friend. He also admitted that Lopez did not point a firearm out of his window as he drove by.

Trial Court Opinion, 8/1/23, at 2-4 (citations omitted; cleaned up).

On November 7, 2022, following trial, a jury found Appellant guilty of

aggravated assault (two counts), possessing an instrument of crime,

recklessly endangering another person, persons not to possess firearms and

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simple assault (two counts). On February 9, 2023, the trial court sentenced

Appellant to an aggregate term of 15 years to 30 years’ imprisonment (7½-

15 years’ imprisonment for aggravated assault and a consecutive term of 7½-

15 years’ imprisonment for persons not to possess firearms). The court

entered concurrent sentences for the remaining convictions. On February 14,

2023, the court amended its judgment of sentence to provide that it was to

run concurrent to a sentence which Appellant was serving in another case.

On February 23, 2023, while represented by trial counsel, Appellant filed

a pro se post-sentence motion. The trial court declined to address this motion

because Appellant was represented by counsel.2

On March 3, 2023, Appellant filed a pro se PCRA petition. On March 13,

2023, the court appointed PCRA counsel. On the same date, trial counsel filed

a notice of direct appeal. Trial counsel subsequently filed a motion to

withdraw, which the trial court granted. PCRA counsel then requested to

withdraw Appellant’s PCRA petition so that Appellant could proceed with his

direct appeal. The court granted this motion and appointed PCRA counsel as

direct appeal counsel.

On June 6, 2024, this Court affirmed Appellant’s judgment of sentence

on direct appeal. On January 6, 2025, our Supreme Court denied Appellant’s

petition for allowance of appeal. ____________________________________________

2 This decision was correct.See Commonwealth v. Thompson, 333 A.3d 461, 468 n.5 (Pa. Super. 2025) (defendant’s pro se filings were legal nullities because he was represented by counsel, and hybrid representation was not permitted).

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On April 14, 2025, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel, who filed a Turner/Finley3 “no merit” letter

along with a request to withdraw as counsel. On June 17, 2025, the PCRA

court granted counsel leave to withdraw and issued a notice of intent to

dismiss Appellant’s petition without a hearing. On July 7, 2025, Appellant filed

objections to the notice of intent. On July 8, 2025, the court dismissed the

petition. This timely appeal followed.

In this appeal, Appellant, proceeding pro se, raises the following issues:

1. Did the lower court err in dismissing the petition without a hearing where [Appellant] made a meritorious argument that trial counsel was ineffective for failing to call the E.R. doctor as a witness to contradict the state’s main witness’s testimony?

2. Did the lower court err in dismissing the petition without a hearing where [Appellant] made a meritorious argument that trial and appellate counsel were ineffective for failing to preserve and litigate the denial of a mistrial when the prosecutor introduced prior bad acts evidence?

3. Did the lower court err in dismissing the petition without a hearing where [Appellant] made a meritorious argument that trial Counsel was ineffective for failing to litigate the trial court’s admission of opinion testimony by a lay witness?

4. Did the lower court err in dismissing the petition without a hearing where [Appellant] made a meritorious argument that trial counsel was ineffective for failing to investigate and present the cell phone records of the victim to impeach his testimony?

Appellant’s Brief at 3.

____________________________________________

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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In reviewing the denial of PCRA relief, this Court examines whether the

PCRA court’s determinations are supported by the record and free from legal

error. Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018). The

reviewing court is not bound by the PCRA court’s rationale for dismissing the

petition and may affirm for any reason supported by the record. Id. The law

presumes that counsel was effective, and a petitioner claiming ineffectiveness

bears the burden of proving otherwise. Commonwealth v. Orlando, 156

A.3d 1274, 1281 (Pa. Super. 2017). To overcome this presumption, a

petitioner must plead and prove by a preponderance of the evidence that: (1)

the underlying claim has arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) the petitioner suffered

prejudice because of counsel’s action or inaction. Id. Our Supreme Court has

explained, “Prejudice in the context of ineffective assistance of counsel means

demonstrating that there is a reasonable probability, but for counsel’s error,

the outcome of the proceedings would have been different.” Commonwealth

v. Cox, 983 A.2d 666, 678 (Pa. 2009). If a petitioner fails to satisfy any one

of the three prongs, the claim fails. Orlando, 156 A.3d at 1281.

Appellant alleges that the PCRA court erred in finding that he failed to

prove that trial counsel was ineffective for failing to call the emergency room

doctor who treated Lopez concerning the nature of his leg injuries. To prove

this claim, Appellant must prove (1) that the witness existed, (2) the witness

was available, (3) trial counsel should have known that the witness existed,

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(4) the witness was willing to testify for Appellant, and (5) the absence of this

testimony prejudiced Appellant’s case. See Commonwealth v. Crawley,

663 A.2d 676, 679-680 (Pa. 1995).

The PCRA court properly denied relief on this issue. Nothing in the

record indicates that this doctor was willing and available to testify at trial.

Moreover, although Appellant complains that the doctor could have testified

regarding the nature of Lopez’s injury and alternate possible causes, Appellant

told police that he crouched down in front near his sister’s house and shot at

Lopez’s vehicle with an AK-47 as it passed by. Two additional videos captured

the shooting. They showed Appellant retrieving a firearm and hiding between

two vehicles in the 500 block of Locust Street as Lopez’s vehicle approached

Appellant’s location. As Lopez drove by Appellant, a loud bang can be heard

on one of the videos. Thus, the cause of Lopez’s injury is readily apparent

from Appellant’s confession. Any opinion from the doctor regarding alternate

possible causes of Lopez’s would not have prejudiced Appellant’s case.

Next, Appellant argues that counsel on direct appeal was ineffective for

failing to litigate the denial of Appellant’s motion for a mistrial. During the

testimony of police investigator Sheller, the Commonwealth asked if his

investigation revealed that Appellant used any other names. In response, the

witness stated that “records were pulled,” including “records and previous

police contacts.” JT at 299. Trial counsel objected and moved for a mistrial,

arguing that this testimony improperly inferred that Appellant had a prior

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criminal record. Id. at 299-300. After a lengthy sidebar discussion, the trial

court issued the following cautionary instruction:

Members of the jury, Criminal Investigator Sheller responded that he pulled records in prior police contacts of the defendant in response to the Commonwealth’s question of whether he knew if the defendant – whether he knew the defendant by any other name. You are not to infer that records or police contact is any indication of prior criminal record. Police will pull driving records for a number of reasons that are not relevant in this case.

Id. at 308. The questioning moved to another subject.

The Rules of Criminal Procedure permit the defendant to move for a

mistrial when a prejudicial event occurs. See Pa.R.Crim.P. 605(B). Every

unwise or irrelevant remark made in the course of a trial by a judge, a witness,

or counsel, however,

does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Moreover, it must be determined from all the circumstances whether a remark has a prejudicial effect; there is no fixed rule applicable to every case. An accepted guide in determining prejudicial effect is that, if the remark may be said with fair assurance to have had but a slight effect upon the jury, if any at all, and one is not left in doubt that it had no substantial influence in the case, it will not vitiate an otherwise fair trial.

Commonwealth v. Sullivan, 820 A.2d 795, 800 (Pa. Super. 2003). A

mistrial is not necessary when cautionary instructions are sufficient to negate

the prejudicial effect of the event. See Commonwealth v. Larkins, 829

A.2d 1203, 1207 (Pa. Super. 2003). A mistrial should only be granted when

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the incident has the unavoidable effect of denying the defendant a fair trial.

Commonwealth v. Montalvo, 641 A.2d 1176, 1188 (Pa. Super. 1994).

Appellant’s claim of ineffectiveness lacks arguable merit. The trial court

properly denied a mistrial because the witness made no specific reference to

prior criminal activity. Additionally, to the extent that the jury could infer that

his testimony indicated prior negative contacts with police, the court’s

cautionary instruction directed the jury not to make such an inference. The

jury is presumed to follow the trial court’s instructions, see Commonwealth

v. Baker, 614 A.2d 663, 672 (Pa. 1992), and nothing in the record indicates

that the jury failed to follow the cautionary instruction here.

Next, Appellant argues that appellate counsel was ineffective for failing

to object to admission of alleged lay opinion testimony by police investigator

Sheller concerning the direction of the bullet through Lopez’s car. No relief is

due.

At trial, investigator Sheller testified that he previously responded to

dozens of crime scenes involving shootings, and he was familiar with

observing evidence of the entrance and exit of a gunshot on people, houses,

windows, cars and wooden structures. When asked about the characteristics

of such evidence, Sheller stated that for entrance markings, the area around

the bullet hole will be pushed in, and for exit markings, the area around the

bullet hole will mushroom outward. Sheller then examined photographs of

the bullet holes on exterior of the door and the inside speaker of Lopez’s car,

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concluding that the bullet was fired from outside the car and entered through

the door and speaker into the car. Trial counsel objected to this testimony as

an improper expert opinion, but the objection was overruled.

Our appellate courts have long recognized the ability of lay witnesses to

render opinions if the opinions are rationally based upon the witness’s

perception. See Pa.R.E. 701(a). Arguably, testimony that bullet entry holes

are pushed in and bullet exit holes are pushed out requires expert testimony.

We need not resolve whether the testimony qualified as permissible lay

opinion testimony, or as testimony requiring an expert, since Appellant still

cannot prove prejudice. Appellant told police that he crouched down in front

near his sister’s house, and he took one shot at Lopez’s vehicle with an AK-47

as it passed by. Thus, by his own admission, the bullet was fired from outside

the car and entered through the door and speaker into the car. Two additional

videos of the shooting confirm the same point. They showed Appellant

retrieving a firearm and hiding between two vehicles in the 500 block of Locust

Street as Lopez’s vehicle approached Appellant’s location. As Lopez drove by

Appellant, a loud bang can be heard on one of the videos. Exclusion of

Sheller’s testimony on the same subject would not have altered the outcome

of trial. Accordingly, the PCRA court properly held that Appellant could not

establish that appellate counsel was ineffective for failing to litigate this issue

on direct appeal.

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Lastly, Appellant argues that trial counsel was ineffective for failing to

investigate and present Lopez’s cell phone records at trial, which Appellant

alleges would have impeached Lopez’s testimony regarding his location and

activities earlier on the day of the shooting. Once again, Appellant fails to

demonstrate that this information would have altered the outcome of the trial.

Even if Lopez’s cell phone records placed him at or around the scene of the

shooting earlier in the day, cell phone records alone do not indicate that any

confrontation occurred which would justify the use of deadly force on an

unarmed victim. Regardless of Lopez’s activities earlier in the day, the record

is clear that Appellant laid in wait with an AK-47 until Lopez passed by in his

car so he could fire at the car. Notably, Appellant admitted shooting at Lopez,

and the shooting was captured on several neighboring surveillance systems,

so any impeachment value of cell phone records would have been minimal.

Accordingly, the PCRA court properly held that trial counsel was not ineffective

for failing to investigate and present Lopez’s cell phone records.

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For these reasons, we affirm the order denying PCRA relief to Appellant.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/18/2026

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