Commonwealth v. Abreu

• Docket Number: 926 EDA 2023,927 EDA 2023,J-S36027-23
• Decision Date: 23 January 2024
• Parties: COMMONWEALTH OF PENNSYLVANIA v. JOSE AMBIORIX ABREU Appellant COMMONWEALTH OF PENNSYLVANIA v. JOSE AMBIORIX ABREU Appellant
• Court: Pennsylvania Superior Court

1

COMMONWEALTH OF PENNSYLVANIA v. JOSE AMBIORIX ABREUAppellantCOMMONWEALTH OF PENNSYLVANIA v. JOSE AMBIORIX ABREUAppellant

Nos. 926 EDA 2023, 927 EDA 2023

No. J-S36027-23

Superior Court of Pennsylvania

January 23, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURTO.P. 65.37

Appeal from the PCRAOrder Entered March 17, 2023 In the Court of Common Pleas of Monroe County Criminal Division at No(s) CP-45-CR-0000613-2018, CP-45-CR-0000657-2018

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM

NICHOLS, J.

In these consolidated appeals, Jose Ambiorix Abreu appeals from the order denying his timely first Post Conviction Relief Act^[1](PCRA) petition.Appellant claims that his guilty plea counsel at trial courtDocketNo. 657- 2018 and nolo contendere plea counsel at trial courtDocketNo. 657-2018 were ineffective.After review, we affirm.

The record reveals that at trial courtDocketNo. 613-2018, Appellant entered a plea of nolo contendere to endangering the welfare of a child (EWOC) and corruption of a minor.^[2]At trial courtDocketNo. 657-2018, Appellant plead guilty to attempted murder, aggravated assault, and recklessly endangering another person (REAP).^[3]On direct appeal, a prior panel of this Court summarized the relevant facts and procedural history as follows:

Appellant was arrested and charged with multiple counts of aggravated indecent assault, several counts of indecent assault, endangering the welfare of a child ("EWOC"), corruption of a minor, and unlawful contact with a minor for sexually abusing his daughter, A.A., between October 1, 2015 and November 17, 2017.The abuse came to light on November 17, 2017 when A.A. was taken to the hospital after attempting to kill herself.A.A. reported that she made the attempt because of the assaults.

In addition to the criminal investigation that concluded with the sex offense charges, Appellant's abuse of A.A. gave rise to parallel child welfare investigations which resulted in A.A., and later her brother, being adjudicated dependent, and Appellant's wife [who is also] A.A.'s mother[(Ivette)], being indicted for failing to protect A.A.The undersigned presided over the hearing at which A.A.'s brother was adjudicated dependent.However, another judge of this court adjudicated A.A. dependent. . . .The attempted murder case has its Genesis in the sexual assault case.When A.A. first disclosed the sexual abuse, [Ivette] did not believe her.In fact, she aligned herself with Appellant against A.A.However, in late February, 2018, a letter from A.A. caused [Ivette] to briefly believe the allegations.On February 23, 2018, Appellant was confronted by [Ivette], [and] an altercation ensued.During the altercation, Appellant assaulted [Ivette] and threatened [Ivette's]father and friend who were also present.

[Ivette] did not want charges filed against Appellant.She did, however, go to the courthouse to obtain a temporary Protection From Abuse (PFA) order.When [Ivette] was too late to obtain a PFA that afternoon, she contacted the police for an escort to the family's residence so that she could retrieve some items, including her son's medicine.

While [Ivette], her father, and her friend were in her car waiting for the police escort, Appellant violently crashed his vehicle into them.All three occupants were injured.Appellant's father-in-law sustained the most severe injuries.[Ivette] and her friend were trapped in the car.Appellant approached the car and said to the entrapped occupants, "I'm glad you're dead, killed you all."As a result, Appellant was arrested and charged with multiple counts of attempted homicide, aggravated assault, simple assault, and [REAP].

Subsequently, [Ivette] re-aligned herself with Appellant and reverted back to disbelieving her daughter.[Ivette] was not cooperative with authorities.In fact, she made affirmative efforts to obtain Appellant's release from jail by attempting, through harassment, threats, and verbal abuse, to get the friend who was with her during Appellant's in-person assault and the vehicular assault to change her story.As a result, [Ivette] was charged with intimidation of a witness and solicitation to commit perjury.Up through the time Appellant[entered his pleas], was sentenced, and filed post-sentence motions, [Ivette] remained distanced from the Commonwealth.This was especially true after [Ivette] pled nolo contendere to one of the charges filed against her following Appellant's entry of pleas in both [cases.]

On February 4, 2019, Appellant pleaded guilty to attempted homicide, aggravated assault and REAP in the attempted murder case.On February 4, 2019, Appellant also pleaded nolo contendere to child endangerment and corruption of a minor in the child endangerment case.^[4] As a part of the negotiations, Appellant and the Commonwealth agreed that Appellant's aggregate minimum sentence in both docket numbers was to fall between 10 and 17 years and the maximum sentence was delegated to the discretion of the trial court.Appellant was represented by counsel, Brandon R. Reish, Esq., in the former case and by [David Skutnik, Esq. of the Public Defender's Office] in the latter case.A sentencing hearing was scheduled for April 30, 2019.On February 22, 2019, Attorney Earl Raynor, Jr.^[5]entered his appearance on behalf of Appellant in both docket numbers.

On March 18, 2019, prior to sentencing, Appellant filed a motion to withdraw his [pleas] in both docket numbers.In the attempted murder case, Appellant argued that he was innocent of the charges and had evidence to support his assertion.In the child endangerment case, Appellant argued that he was innocent of the charges and offered evidence challenging the credibility of A.A.'s allegations.^[6]The trial court set a consolidated hearing on both motions for April 30, 2019.On April 30, 2019, after the hearing, the trial court denied Appellant's motions to withdraw his . . . pleas and proceeded to sentencing on both docket numbers.

In the attempted murder case, Appellant was sentenced to 7.5 to 20 years' incarceration on the attempted murder charge, and 4 to 10 years' incarceration on the aggravated assault charge, to run consecutive to the attempted murder charge.Appellant was sentenced to 6 months' to 2 years' incarceration on the REAP charge, to run consecutive to the attempted murder and aggravated assault charge.Appellant was sentenced to an aggregate sentence of 12 to 32 years' incarceration in the attempted murder case.

On the same date, Appellant was sentenced in the child endangerment case.Appellant was sentenced to 16 months to 4 years' incarceration on the child endangerment charge and 16 months to 4 years' incarceration on the corruption of minors charge, to run consecutive to the child endangerment charge.Appellant's aggregate sentence in the child endangerment case is 32 months to 96 months' incarceration.Appellant's sentence in the child endangerment case is to run consecutive to the sentence in the attempted murder case.Appellant's aggregate sentence on both docket numbers is 14 years 8 months to 40 years' incarceration.

On May 9, 2019, Appellant filed post-sentence motions in both docket numbers challenging the discretionary aspects of his sentence and argued that the trial court erred in failing to recuse itself. . . .On May 10, 2019, Appellant filed a motion for reconsideration of denial of motion to withdraw[his pleas] in both cases.^[7] On July 23, 2019, the trial court denied Appellant's post-sentence motions, including the motions to reconsider.On August 12, 2019, Appellant filed timely notices of appeal at both docket numbers.

Commonwealth v. Abreu, 2021 WL 212283 at *1-3, 2379 EDA 2019(Pa. Super. filed Jan. 21, 2021)(unpublished mem.)(citations and footnotes omitted and formatting altered).On direct appeal, Appellant alleged, inter alia, that the trial court abused its discretion in denying Appellant's pre-sentence motion to withdraw his pleas and motion for reconsideration.Seeid. at *3.Following review, this Court affirmed Appellant's judgments of sentence.Seeid. at *16.On August 4, 2021, our Supreme Court denied allowance of appeal.Commonwealth v. Abreu, 78 MAL 2021, 260 A.3d 79(Pa. filed Aug. 4, 2021).

Appellant timely filed the instant PCRA petitions on October 12, 2021.After conducting an evidentiary hearing, the PCRA court denied Appellant's PCRA petitions.These timely appeals followed.Appellant filed a concise statement of errors complained of on appeal at both trial court dockets pursuant to Pa. R.A.P. 1925(b), and the PCRA court filed Pa.R.A.P. 1925(a) opinions.^[8]

On appeal, Appellant presents the following issue:

Whether Appellant's judgment of sentence should be vacated because the representation of both of his guilty plea counsels was wholly ineffective, where they both disregarded exculpatory evidence in unlawfully inducing Appellant to plead guilty, thereby prejudicing . . . [Appellant's] right to fair trials, resulting in Appellant's conviction as an innocent man in both cases?

Appellant's Briefat 4(formatting altered).^[9]

Appellant argues that guilty plea counsel, Brandon Reish, Esq.(Attorney Reisch), and nolo contendere plea counsel, David Skutnik, Esq.(Attorney Skutnik), were ineffective.Appellant contends that Attorney Reisch and Attorney Skutnik disregarded exculpatory evidence and unlawfully induced Appellant to enter his pleas.^[10]Seeid. at 29-32.

In reviewing Appellant's claims, we are guided by the following principles:

[O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error.The PCRA court's credibility determinations,

...