J-S52001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JOSE LUIS GARCIA, :

:

Appellant : No. 131 MDA 2017

Appeal from the PCRA Order December 20, 2016

in the Court of Common Pleas of Berks County,

Criminal Division, No(s): CP-06-CR-0003340-2012

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 21, 2017

Jose Luis Garcia (“Garcia”), pro se, appeals from the Order dismissing 

his first Petition for relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

At the close of a jury trial in January 2013, Garcia was convicted of 

various sexual offenses, stemming from his sexual assault of the five-year-old 

victim in 2006. The trial court sentenced Garcia to an aggregate term of 81⁄2 

to 25 years in prison. This Court affirmed the judgment of sentence. See 

Commonwealth v. Garcia, 91 A.3d 1284 (Pa. Super. 2013) (unpublished 

memorandum). Garcia did not seek allowance of appeal with the Supreme 

Court of Pennsylvania.

In November 2014, Garcia filed a timely pro se PCRA Petition. 

Following a procedural history that is not relevant to the instant appeal, the 

PCRA court appointed Michael Dautrich, Esquire (hereinafter, “PCRA 
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counsel”), to represent Garcia.1 In August 2016, PCRA counsel filed an 

Amended PCRA Petition.

On November 30, 2016, the PCRA court issued a Pa.R.Crim.P. 907 

Notice of Intent to Dismiss the PCRA Petition without a hearing (hereinafter 

“Rule 907 Notice”). Garcia thereafter filed a counseled Response, and a 

separate pro se Response. By an Order entered on December 20, 2016, the 

PCRA court dismissed Garcia’s PCRA Petition. 

Garcia timely filed a pro se Notice of Appeal, after which PCRA counsel 

filed a separate Notice of Appeal. On January 18, 2017, the PCRA court 

ordered Garcia to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. On February 6, 2017, Garcia timely filed a pro se

Concise Statement, raising eighteen separate alleged errors. The next day, 

PCRA counsel filed a separate Concise Statement. On February 8, 2017, the 

PCRA court issued a Statement of Reasons in support of its dismissal of 

Garcia’s PCRA Petition, wherein the court relied on its reasoning advanced in 

the Rule 907 Notice.

In March 2017, Garcia filed with this Court an Application requesting 

permission to proceed pro se on appeal, and for a remand for the PCRA court 

to conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 

(Pa. 1998). This Court granted Garcia’s Application, and ordered the PCRA 

 

1 Garcia had previously been appointed two other counsel to assist him on 

collateral review, but both withdrew their appearances after Garcia had filed 

disciplinary complaints against them.
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court to conduct a Grazier hearing to determine whether Garcia’s decision to 

proceed pro se was made knowingly, intelligently and voluntarily.

By an Order entered on April 19, 2017, the PCRA court granted Garcia’s 

request to represent himself on appeal. Additionally, upon Garcia’s request, 

the PCRA court withdrew the Concise Statement filed by PCRA counsel, and 

permitted Garcia to proceed on the issues presented in his pro se Concise 

Statement.

Initially, we note that Garcia’s pro se brief does not meet the following 

requirements: Pa.R.A.P. 2111(a)(2) and 2115(a) (order in question); 

Pa.R.A.P. 2111(a)(3) (statement of both the scope of review and the standard 

of review); Pa.R.A.P. 2111(a)(4) and 2116 (statement of questions 

involved);2Pa.R.A.P. 2111(a)(5) and 2117 (statement of the case); and 

Pa.R.A.P. 2111(a)(6) and 2118 (summary of the argument). However, we 

will overlook these defects and address Garcia’s issues. See 

Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) 

(acknowledging that this Court may liberally construe materials filed by a pro 

se litigant). But see also id. (noting that pro se defendants are held to the 

same standards as licensed attorneys).

We begin by noting our well-settled standard of review: “In reviewing 

the denial of PCRA relief, we examine whether the PCRA court’s determination 

 

2 We observe that Garcia divides the Argument section of his brief into 

eighteen separate, numbered “issues,” which closely mirror the eighteen 

issues presented in his pro se Concise Statement.
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is supported by the record and free of legal error.” Commonwealth v. 

Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The scope 

of review is limited to the findings of the PCRA court and the evidence of 

record, viewed in the light most favorable to the prevailing party at the trial 

level.” Id. (citation omitted).

Under the PCRA, an issue is waived “if the petitioner could have raised

it but failed to do so before trial, at trial, during unitary review, on appeal or 

in a prior state post[-]conviction proceeding.” 42 Pa.C.S.A. § 9544(b); see 

also Commonwealth v. Jones, 815 A.2d 598, 607 (Pa. 2002) (same).

Here, the issues that Garcia sets forth in his Argument section 

numbered 1-6 and 13, could have been raised before the trial court and/or on 

direct appeal. See Brief for Appellant at 1-5, 9 (raising claims of 

prosecutorial misconduct and trial court error in, inter alia, (1) failing to 

conduct a competency hearing concerning the minor victim (who was 12 

years of age at the time of trial); (2) permitting the victim to take a break 

during her testimony to speak with her mother; and (3) sentencing Garcia). 

Accordingly, all of these issues are waived under section 9544(b). See 

Jones, 815 A.2d at 607; see also Commonwealth v. Abdul-Salaam, 808 

A.2d 558, 560 (Pa. 2001).

In the majority of his remaining issues, Garcia alleges that the 

representation rendered by his trial counsel was deficient in several respects. 

See Brief for Appellant at 5-11.
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We review claims alleging ineffectiveness of counsel under the following 

standard:

[A] PCRA petitioner will be granted relief only when he proves, by 

a preponderance of the evidence, that his conviction or sentence 

resulted from the ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii). 

Counsel is presumed effective, and to rebut that presumption, the 

PCRA petitioner must demonstrate that counsel’s performance 

was deficient and that such deficiency prejudiced him. ... [T]o 

prove counsel ineffective, the petitioner must show that: (1) his 

underlying claim is of arguable merit; (2) counsel had no 

reasonable basis for his action or inaction; and (3) the petitioner 

suffered actual prejudice as a result. If a petitioner fails to prove

any of these prongs, his claim fails. Generally, counsel’s 

assistance is deemed constitutionally effective if he chose a 

particular course of conduct that had some reasonable basis 

designed to effectuate his client’s interests. Where matters of 

strategy and tactics are concerned, a finding that a chosen 

strategy lacked a reasonable basis is not warranted unless it can 

be concluded that an alternative not chosen offered a potential for 

success substantially greater than the course actually pursued. 

To demonstrate prejudice, the petitioner must show that there is 

a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceedings would have been different. A 

reasonable probability is a probability that is sufficient to 

undermine confidence in the outcome of the proceeding.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations, quotation 

marks and brackets omitted).

Before addressing Garcia’s ineffectiveness claims, we must determine 

whether he properly preserved them on appeal. Garcia did not raise his 

issues numbered 8, 10, 11 and 16 (see Brief for Appellant at 6, 7-8, 10) in 

his pro se PCRA Petition, Amended PCRA Petition, or the Responses to the 

Rule 907 Notice. Accordingly, he has waived these issues. See Pa.R.A.P. 
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302(a) (stating that a claim cannot be raised for the first time on appeal); 

Commonwealth v. Roney, 79 A.3d 595, 611 (Pa. 2013) (holding that the 

appellant/PCRA petitioner waived his issues for failing to present them to the 

PCRA court); see also Pa.R.Crim.P. 902(B) (stating that “[e]ach ground 

relied upon in support of the relief requested shall be stated in the [PCRA] 

petition. Failure to state such a ground in the petition shall preclude the 

defendant from raising that ground in any proceeding for post-conviction 

collateral relief.”).

In his issue numbered 7, Garcia argues that his trial counsel was 

ineffective for failing to request a competency hearing concerning the 

proposed testimony of the minor victim, “where it [was] clear that the alleged 

victim did not remember the events that alleged[ly] took place[.]” Brief for 

Appellant at 5. According to Garcia, he was “prejudice[d] because[,] had trial 

counsel requested a competency hearing[,] there is a re[ason]able probability 

that [Garcia] would have been acquitted ....” Id. at 6.

The PCRA court addressed this issue in its Rule 907 Notice as follows: 

[Garcia] alleges that his trial counsel was ineffective for failing to 

request a competency evaluation/determination of the minor 

victim. Every witness, however, is presumed competent. 

Pa.R.E. 601(a). A party who challenges the competency of a 

minor witness must prove by clear and convincing evidence that 

the witness lacks “the minimal capacity ... (1) to communicate, 

(2) to observe an event and accurately recall that observation, 

and (3) to understand the necessity to speak the truth.” 

Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003); 

Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011). 

Due to the fact [that] a child’s ability to comply with these 

competency considerations increases with age, the inquiry must 
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be in line with the child’s chronological immaturity. 

Commonwealth v. King, 786 A.2d 993, 997 (Pa. Super. 2001). 

The failure of a court to conduct a separate competency hearing 

of a child will not necessarily prejudice a defendant. 

Commonwealth v. Harvey, 812 A.2d 1190, 1199 (Pa. Super. 

2002) (holding that because [the] trial court had the opportunity 

to observe a 13-year-old witness’s demeanor and was the sole 

determiner of her truthfulness, the fact that the court did not 

engage in a distinct colloquy regarding the truthfulness aspects 

of her competency did not prejudice the appellant).

In this matter, [Garcia] has not presented any facts in his 

[PCRA] Petition how the failure of his counsel to call for a 

competency hearing did not have some reasonable basis 

designed to effectuate his interests[,] and would have changed 

the outcome of the case. The record demonstrates that, 

although no formal competency hearing was held, the court did 

swear the [victim] before she began [her] testimony, and the 

Commonwealth’s direct examination of the [victim] began with 

simple factual questions[,] which the [victim] answered 

truthfully – her age, her school level and name, and the names 

of her mother, stepfather, and siblings. Given that the [victim] 

was nearly old enough to proceed without any competency 

hearing due to age, and given her apparent ability to answer the 

questions posed with a reasonable degree of certainty, [Garcia’s] 

counsel may have reasonably concluded that the [victim] did not 

require a competency hearing, and that, accordingly, [counsel] 

did not find calling for one a necessary step in his trial strategy 

for [Garcia]. As a final note, [Garcia’s] initial pro se [P]etition 

failed to explain how the [victim] could have been both too 

incompetent to testify and was “being coach [sic] by her mother 

to give false testimony to the court.” [Garcia’s] claim on this 

issue is thus without merit.

Rule 907 Notice, 11/30/16, at 4-5 (citation to record omitted). The PCRA 

court’s analysis and determination is sound and supported by the record, and 

we therefore affirm on this basis in rejecting this claim of trial counsel’s 

ineffectiveness. See id.; see also Commonwealth v. Puksar, 951 A.2d 

267, 277 (Pa. 2008) (stating that “[a] claim of ineffectiveness cannot succeed 
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through comparing, in hindsight, the trial strategy employed with alternatives 

not pursued.”).

In his issue numbered 9, Garcia avers that trial counsel was ineffective 

for failing to request a “bias jury instruction” concerning the testimony of 

Commonwealth witness Cynthia Midina (“Midina”).3 Brief for Appellant at 7. 

Garcia points out that Midina had testified prior to trial that Garcia had 

allegedly perpetrated other, uncharged sexual acts against the victim.4 Id.

“[T]he decision whether to seek a jury instruction implicates a matter of 

trial strategy[.]” Commonwealth v. Lesko, 15 A.3d 345, 401 (Pa. 2011) 

(citing, inter alia, Commonwealth v. Hawkins, 894 A.2d 716, 730 (Pa. 

2006) (collecting cases)). Where defense counsel had any reasonable basis 

for not requesting a certain jury instruction, counsel will not be found 

ineffective. Commonwealth v. Sullivan, 299 A.2d 608, 611 (Pa. 1973); 

see also Spotz, supra.

At trial, Midina did not present any testimony concerning the uncharged

 

3 Midina is the victim’s adult cousin, who often supervised the victim. N.T. 

(trial), 1/16-17/13, at 37. On the date of the sexual assault, Midina 

temporarily left the victim in the care of Garcia, while Midina went to the 

emergency room for treatment. Id. at 37-41. Upon returning later that day, 

Midina gave the victim a bath and noticed that her genitals were “really, 

really red[,]” whereupon the victim told Midina that Garcia had inserted his 

finger in her vagina. Id. at 43-45.

4 Specifically, Midina testified at the Motion in Limine hearing that the victim 

had told her that Garcia had also forced the victim to perform oral sex on him 

(hereinafter referred to as “the uncharged sexual conduct”), in addition to 

touching her genitals with his fingers. N.T., 1/11/13, at 10, 13. 
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sexual conduct. Rather, she only testified to the victim’s statement to her 

that Garcia had touched her genitals with his fingers. N.T., 1/16-17/13, at 

45-46. Moreover, the trial court issued comprehensive instructions to the 

jury, including an instruction that it was the jury’s sole province to evaluate 

whether any witness was biased for or against either party. Id. at 154-55 

(stating that “[i]f you find that a witness has an interest or bias in the 

outcome of the case, you should consider such interest or bias in weighing his 

or her testimony.”). Accordingly, we conclude that Garcia’s trial counsel had 

no reasonable basis to request a separate “bias jury instruction”5concerning 

Midina’s testimony, and therefore, cannot be deemed ineffective in this 

regard. See Sullivan, supra; see also Hawkins, 894 A.2d at 731 

(rejecting the PCRA petitioner’s challenge to his trial counsel’s effectiveness in 

failing to request a jury instruction); Commonwealth v. Fisher, 813 A.2d 

761, 770 (Pa. 2004) (stating that trial counsel cannot be deemed ineffective 

for failing to object to a proper jury charge).

In his issue numbered 12, Garcia contends that trial counsel was 

ineffective for failing to present evidence that, when the trial court permitted 

the victim to take a break in her testimony to speak with her mother, two 

witnesses allegedly overheard the victim’s mother (in the courtroom hallway) 

 

5 Garcia fails to specify precisely which jury instruction would have been 

appropriate for his trial counsel to request in order to inform the jury that 

Midina, an adverse witness, was biased against Garcia.
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“coaching” the victim to testify falsely (hereinafter, “the purported coaching 

evidence”). Brief for Appellant at 8-9. 

This claim does not entitle Garcia to relief. Garcia cites to no evidence 

to substantiate his bald assertion that he had informed trial counsel of the 

purported coaching evidence. See Commonwealth v. Solano, 129 A.3d 

1156, 1166 (Pa. 2015) (stating that, in order to prevail on a claim that trial 

counsel was ineffective for failing to call a witness, a PCRA petitioner must 

establish, inter alia, that counsel knew or should have known of the existence 

of the witness and his or her proposed testimony); see also 

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002) (undeveloped 

claims of ineffectiveness do not entitle a petitioner to relief). In any event, 

Garcia has failed to meet his burden of establishing that the absence of the 

purported coaching evidence was so prejudicial that it denied him a fair trial, 

see Solano, 129 A.3d at 1166, particularly where the Commonwealth 

provided other evidence that corroborated the victim’s allegation that she was 

sexually assaulted.6 Thus, Garcia’s claim is without merit.

In his issue numbered 14, Garcia avers that trial counsel was ineffective 

for failing to cross-examine Commonwealth witness Detective William Kase 

 

6 Additionally, the PCRA court correctly observed in its Rule 907 Notice that 

“[t]he record also demonstrates that the trial court took care, while allowing 

the [victim] to step down briefly from the stand, to instruct her not to discuss 

the case with anyone during the break, even reiterating that she could talk to 

her mother about ‘anything else[,] but not about the case.’ (N.T.[,] 

10/16/12[,] at p. 26).” Rule 907 Notice, 11/30/16, at 6.
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(“Detective Kase”)7at the Motion in Limine hearing, wherein Detective Kase 

allegedly testified falsely. Brief for Appellant at 9. We disagree.

Garcia does not offer any evidence to establish (1) how trial counsel’s 

failure to cross-examine Detective Kase at the pretrial hearing caused Garcia 

prejudice; or (2) Garcia’s bald claim that Detective Kase’s testimony was 

false. Accordingly, Garcia failed to establish that trial counsel was ineffective 

in this regard. See Spotz, supra; Jones, supra.

8

In his issue numbered 15, Garcia contends that trial counsel was 

ineffective for failing to object to a medical opinion offered at trial by 

Commonwealth witness William Sotack, M.D. (“Dr. Sotack”), an emergency 

room physician who had performed an examination of the victim on the day 

of the sexual assault. Brief for Appellant at 9-10. According to Garcia, this 

“opinion” (which Garcia fails to identify) was based on hearsay statements 

that the victim made to Dr. Sotack, rather than Dr. Sotack’s own observations 

during his examination. Id.

Garcia’s claim is belied by the record. Though Dr. Sotack recounted 

that the victim had informed him that Garcia had “rubbed her genital area 

 

7 Detective Kase had observed an employee of Berks County Children and 

Youth Services (“CYS”) interview the victim (hereinafter, “the CYS 

interview”), via closed circuit television. In the CYS interview, the victim 

described the sexual assault by Garcia.

8 Moreover, trial counsel cross-examined Detective Kase at trial, and 

attempted to undermine the allegations made by the victim at the CYS 

interview by pointing out that this interview occurred four days after the 

alleged sexual assault. N.T., 1/16-17/13, at 78-79.
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with his fingers[,]” N.T., 1/16-17/13, at 63, Dr. Sotack also testified that he 

had personally observed “swelling and redness” in the area of the victim’s 

vulva. Id. at 64. Moreover, Garcia’s trial counsel vigorously cross-examined 

Dr. Sotack, and elicited from Dr. Sotack concessions that (1) he could not 

determine whether the victim’s genitals had been penetrated; and (2) his 

recollection of his examination of the victim was based wholly on his medical 

notes, not his independent memory. Id. at 65-66. Accordingly, trial counsel 

was not ineffective for failing to object to Dr. Sotack’s testimony. See Spotz, 

supra; Commonwealth v. Weiss, 606 A.2d 439, 441 (Pa. 1992) (stating 

that “[c]ounsel cannot be found ineffective for failing to pursue a baseless or 

meritless claim.”).

In his issue numbered 17, Garcia argues that trial counsel was 

ineffective for failing to retain an expert medical doctor to review the victim’s 

medical records, so that this expert could purportedly offer an opinion that 

other factors might have caused the redness and swelling of the victim’s 

vulva after the alleged assault. Brief for Appellant at 10-11; see also id.

(asserting that the swelling could have also been caused by a viral illness or 

the victim’s having soiled herself on the date in question).

In its Rule 907 Notice, the PCRA court determined that Garcia failed to 

properly preserve this issue, stating as follows:

[Garcia] failed to attach to his [PCRA] Petition a certification of 

any expert witnesses. “Where a petitioner requests an 

evidentiary hearing, the petition shall include a signed 

certification as to each intended witness stating the witness’s 
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name, address, date of birth and substance of testimony and 

shall include any documents material to that witness’s 

testimony. Failure to substantially comply with the requirements 

of this paragraph shall render the proposed witness’s testimony 

inadmissible.” 42 Pa.C.S.A. § 9545(d)(1). As [Garcia] 

requested for his relief an evidentiary hearing, [his] failure to 

comply with this section renders this claim meritless.

Rule 907 Notice, 11/30/16, at 6-7. We agree with the PCRA court’s reasoning 

and determination, and affirm on this basis as to this issue. See id.

In his final issue, Garcia alleges that PCRA counsel was ineffective for 

filing (1) a “late” Response to the Rule 907 Notice, i.e., after the PCRA court’s 

issuance of the Order dismissing Garcia’s PCRA Petition; and (2) an Amended 

PCRA Petition that did not justify an evidentiary hearing. Brief for Appellant 

at 11. 

It is well established that “claims of PCRA counsel’s ineffectiveness may 

not be raised for the first time on appeal.” Commonwealth v. Henkel, 90 

A.3d 16, 20 (Pa. Super. 2014) (en banc) (collecting cases); Commonwealth 

v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012) (stating that “issues of PCRA 

counsel effectiveness must be raised in a serial PCRA petition or in response 

to a notice of dismissal before the PCRA court.”). 

In the instant case, Garcia never raised his instant claim of PCRA 

counsel’s ineffectiveness prior to the dismissal of his PCRA Petition and his 

filing of a Notice of Appeal and Rule 1925(b) Concise Statement. Thus, 

because Garcia raised this claim for the first time on appeal, we may not now 

address it. See Henkel, supra; Ford, supra; see also Pa.R.A.P. 302(a). 
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Accordingly, as none of Garcia’s claims entitle him to collateral relief, 

the PCRA court properly dismissed his PCRA Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/21/2017