Com. v. Gonzalez

• Decision Date: 09 September 2004
• Citation: 858 A.2d 1219
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. Javier GONZALEZ, Appellant.
• Court: Pennsylvania Superior Court

858 A.2d 1219

COMMONWEALTH OF PENNSYLVANIA, Appellee v. Javier GONZALEZ, Appellant.

Superior Court of Pennsylvania.

Submitted June 28, 2004.

Filed September 9, 2004.

Javier Gonzalez, appellant, Pro Se.

Hugh J. Burns, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before: LALLY-GREEN, OLSZEWSKI, JJ.; and McEWEN, P.J.E.

OLSZEWSKI, J.:

¶ 1 Javier Gonzalez (appellant/defendant) appeals the order of the Court of Common Pleas of Philadelphia County (Greenspan, J.) denying his petition for relief pursuant to the Post-Conviction Relief Act (PCRA). We affirm.

¶ 2 We previously summarized the basic facts of this case in our memorandum decision disposing of appellant's direct appeal.

On April 10, 1999, Gonzalez and Luis Rivera left a bar in Philadelphia with Luis Fuentes and Brenda Credit around 2:30 a.m. Fuentes was driving a van, with Credit in the front passenger seat and Gonzalez and Rivera in the back. After Gonzalez and Rivera began to argue over who should drive the car, Fuentes and Credit heard multiple shots from the back seat. Fuentes and Credit turned around and saw [that] Rivera had been shot; [and] Gonzalez was still pointing a gun at him.

Fuentes wanted to take Rivera to a hospital but Gonzalez refused; still holding the gun in his hand, he ordered Fuentes to stop the van. Acting upon Gonzalez' orders, Fuentes and Credit left the van with Gonzalez, walked to Fuentes' house, got into a car and drove to a gas station. Gonzalez ordered Credit to purchase antifreeze. Gonzalez emptied the container and refilled it with gasoline, then ordered Fuentes to drive him back to the van. Gonzalez doused the van with gasoline and lit it, with Rivera's body still inside.

Gonzalez ordered Fuentes to drive Credit home. As Credit got out, Gonzalez told her [that] she had not witnessed anything and not to worry about it. Gonzalez discarded his clothes on railroad tracks near Credit's home, then told Fuentes to drive him home.

At trial, Fuentes, Credit, detectives and officers who investigated the crime, and the medical examiner who performed the autopsy testified. Gonzalez was convicted of first degree murder, reckless burning, VUFA [a Violation of the Uniform Firearms Act] and PIC [Possessing an Instrument of a Crime]. He was sentenced to life imprisonment for murder followed by two concurrent sentences of sixteen to sixty months incarceration for reckless burning and VUFA. The trial court imposed no penalty for the PIC count.

Commonwealth v. Gonzalez, No. 2296 EDA 2000, unpublished memorandum at 1-2 (Pa.Super. filed August 24, 2001). After we denied appellant's direct appeal and affirmed his judgment of sentence, appellant filed a pro se PCRA petition on August 28, 2002. The PCRA court appointed counsel to represent appellant. Counsel, after reviewing appellant's petition and the record, concluded that appellant's petition had no merit and filed a "no merit" letter pursuant to Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (Pa.Super.1988), and Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (Pa.1988). The PCRA court dismissed appellant's petition after affording him an opportunity to respond to the "no merit" letter of counsel. This appeal followed.

¶ 3 Appellant raises three questions for our review.

I. Whether trial counsel was ineffective for failing to object [and to request a curative instruction] when [C]ommonwealth introduced Appellant's demeanor after killing occurred as element of malice for murder in first degree and all prior counsel were ineffective for failing to raise, present and preserve this claim thereby so undermining the truth-determining process that no reliable adjudication of guilt or innocence could take[] place? ...

II. Whether trial counsel was ineffective when he did not object and seek precautionary instruction following testimony that established Appellant had prior contact with the homicide division and all prior counsel's [sic] were ineffective for failing to raise, present and preserve this claim thereby so undermining the truth-determining process that no reliable adjudication of guilt or innocence could have taken place?

III. Whether the PCRA Court erred when it dismissed Appellant's petition and permitted counsel to withdraw?

Appellant's brief, at 3.

¶ 4 When reviewing the denial of a PCRA petition, we will affirm the PCRA court's determination so long as it is supported by the evidence and is free of legal error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 586 (1999). Further, we will reverse only if there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

¶ 5 The bulk of appellant's contentions both on appeal and in his PCRA petition concern claims of ineffective assistance of counsel. Claims of ineffective assistance of counsel are governed by our Supreme Court's decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), which held that such claims are properly raised for the first time in a PCRA petition. Grant specifically overruled Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), which required criminal defendants to raise ineffective assistance of counsel claims at the earliest possible stage (i.e., when the defendant obtains new counsel). Grant, however, applies retroactively only to cases "on direct appeal where the issue of ineffectiveness was properly raised and preserved." Grant, 813 A.2d at 738 (citations omitted). As our Supreme Court stated, "Our decision today has no effect on cases currently pending on collateral review." Id., at 739 n. 16. Appellant filed his instant PCRA petition on August 28, 2002. Our Supreme Court filed Grant on December 31, 2002. Therefore, appellant's PCRA petition was "currently pending on collateral review" when our Supreme Court decided Grant. Accordingly, Grant does not apply to appellant's case, and we must analyze appellant's claims of ineffective assistance of counsel under Hubbard and its progeny.

¶ 6 Hubbard and its progeny required that "newly appointed counsel or retained counsel must raise on appeal the ineffectiveness of his predecessor trial counsel or that claim will be deemed waived. Newly appointed counsel must raise ineffectiveness of prior counsel at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents the defendant." Commonwealth v. Mays, 450 Pa.Super. 188, 675 A.2d 724, 727 n. 5 (1996) (citations omitted). "[C]laims of ineffective assistance of counsel [may be raised] even in circumstances in which one or more post-verdict substitutions of counsel have occurred, where the petition also asserts the ineffectiveness of all prior counsel." Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 523 (2001) (citation omitted). Essentially, an appellant who failed to properly raise claims of ineffective assistance of trial counsel in his direct appeal or previous PCRA petitions was required to "layer" his current claim by arguing that not only was trial counsel ineffective, but all prior counsel were ineffective for failing to raise the issue of trial counsel's ineffectiveness.

¶ 7 While appellant discusses trial counsel's ineffectiveness, he uses only boilerplate language to assert that appellate and PCRA counsel were ineffective for failing to raise and argue these claims of trial counsel ineffectiveness. Because appellant used only boilerplate language in arguing appellant and PCRA counsel's ineffectiveness, we must first analyze the petitioner's underlying claim of ineffective assistance of trial counsel. If the underlying claims have merit, then we will remand the case to allow the petitioner to more fully develop the layered analysis concerning appellate and any subsequent counsel. If, however, the underlying claims have no merit, then we will not remand as the petitioner will be unable to sustain any claims of ineffectiveness against appellate or subsequent counsel. Commonwealth v. Edmiston, 851 A.2d 883, 891-92 (Pa.2004) (citing Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651 (2003); and Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003)) (discussing in detail the procedure to be used when a criminal defendant uses boilerplate language to assert ineffective assistance of appellate and PCRA counsel).

¶ 8 Turning to the merits of appellant's underlying claims of ineffectiveness of trial counsel, we note that the law surrounding ineffective assistance of counsel claims is well settled.

[W]e begin with the presumption that counsel was effective. A claimant establishes ineffective assistance of counsel when he demonstrates that "[1] the underlying claim is of arguable merit; [2] that counsel's action or inaction was not grounded on any reasonable basis designed to effectuate the appellant's interest; and finally, [3] that counsel's action or inaction was prejudicial to the client." For an action (or inaction) by counsel to be considered prejudicial to the client, there must be a "reasonable probability that the outcome of the proceedings would have been different." All three prongs of this test must be satisfied. If an appellant fails to meet even one prong of the test, his conviction will not be reversed on the basis of ineffective assistance of counsel.

Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa.Super.2004) (citations omitted).

¶ 9 Appellant raises two claims of ineffective assistance of trial counsel: (1) failing to object and request a jury instruction regarding the introduction of evidence of malice;¹ and (2) failing to object and request a curative instruction regarding the introduction of evidence that appellant's photograph was on file with the police.² ¶ 10 To be convicted of first-degree murder, a person must kill with intent and with malice aforethought. Commonwealth v. Ragan, 560 Pa. 106, 743 A.2d 390, 400 (1999) (quoted in Commonwealth v. Hamilton, 766 A.2d 874, 877 n. 4 (Pa.Super.2001)).

Malice has

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