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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

OSCAR ALVARADO, : No. 963 EDA 2015

:

 Appellant :

Appeal from the PCRA Order, March 13, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0001284-2009

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2016

Oscar Alvarado appeals, pro se, from the order entered in the Court of 

Common Pleas of Philadelphia County that dismissed his petition filed 

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 

(“PCRA”). We affirm.

The PCRA court set forth the following factual history:

At approximately 4:20 p.m. on October 21, 

2008, Marta Martinez (decedent) was fatally shot by 

[appellant] at Fairhill Square Park, located at the 

intersection of Lawrence Street and Lehigh Avenue in 

Philadelphia.

At approximately 3:00 p.m. that same day, 

[appellant] and his cousin, co-defendant Cynthia 

Alvarado (Cynthia), had purchased Xanax pills from 

a person in Fairhill Park, which was well-known for 

the illegal sale of prescription medication 

pills.[Footnote 9] While [appellant] purchased the 

pills in the park, Cynthia waited across the street in 
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her car, a red Honda Civic. While waiting, Cynthia 

encountered a childhood friend, Maiced 

Beltran.[Footnote 10] Cynthia offered Ms. Beltran a 

ride, which she accepted. When [appellant] returned 

from purchasing the drugs, each person ingested 

multiple Xanax pills.

[Footnote 9] The identity of this person 

is unknown.

[Footnote 10] Ms. Beltran testified for 

the Commonwealth to many of the facts 

contained herein.

The trio spent an hour travelling to various 

locations, with Cynthia driving, [appellant] sitting in 

the passenger seat, and Ms. Beltran and Cynthia’s 

one-year old daughter sitting in the back seat. At 

some point during this hour, [appellant] pulled a gun 

out from underneath his seat and showed it to 

Ms. Beltran and Cynthia. At approximately 

4:00 p.m., the trio returned to the park to purchase 

more Xanax pills. Cynthia parked the car near the 

intersection of 4th and Lawrence Streets. Upon 

arriving, Ms. Beltran suggested to [appellant] that he 

try to “get a play,” meaning that he should try and 

get extra pills in addition to the amount for which he 

was paying. [Appellant] began to walk away from 

the car and into the park to make the purchase, but 

Cynthia called him back and stated, “Cuz, you know, 

you know what to do. You know, if they don’t give 

you a play, just pull that shit out.” Ms. Beltran 

understood this to mean that Cynthia was suggesting 

to [appellant] that he should use his gun to get the 

extra pills. Ms. Beltran got upset with Cynthia for 

making this statement and began to yell at her. 

[Appellant] then left the vehicle and walked into the 

park. The decedent, a homeless woman, was 

standing near the parked vehicle.

[Appellant] approached a male drug dealer in 

the park,[Footnote 11] pulled the gun out of his 

waistband, stuck it into the drug dealer’s midsection, 

and took a bottle of Xanax pills that the drug dealer 
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was holding in his hand. [Appellant] then turned 

around and began walking back to the vehicle. The 

drug dealer began yelling, “He robbed me!” and the 

other people in the park, including the victim, joined 

in. Some people started following [appellant]. 

[Appellant] ran towards the car and got back into the 

passenger seat of the vehicle. The decedent 

approached the vehicle and attempted to look inside 

the driver’s side window. [Appellant] reached across 

the driver’s seat and shot the victim through the 

partially open driver’s side window. [Appellant] then 

opened the passenger door, reached over the hood 

of the car, and fired two to three more shots into the 

park area.[Footnote 12] [Appellant] then told 

Cynthia to drive away, and she obliged, leaving the 

area of the park.

[Footnote 11] The identity of the drug 

dealer is unknown.

[Footnote 12] Eyewitness accounts differ 

as to how [appellant] shot the gun after 

the initial shot through the open window. 

One eyewitness, Edwin Schermety, 

stated that [appellant] did not reach over 

the hood but continued to shoot through 

the window. In her police statement, 

Cynthia stated that [appellant] walked to 

the back of the car and fired the shots 

from that location.

As the trio left the park, they ingested more 

Xanax pills from the bottle that [appellant] had just 

taken from the drug dealer. The group then drove to 

various locations, including Cynthia’s father’s house, 

where they traded the Honda Civic for her father’s 

red Dodge pickup truck, and dropped off Cynthia’s 

child. After leaving the house, the group also 

purchased a vial of the drug angel dust.[Footnote 

13] The group then drove to Cynthia’s apartment, 

located at 106 West Thompson Street, where they 

stayed until their arrest at approximately 8:00 p.m. 

that evening. The police, having received a license 

plate number for the red Honda Civic and descriptive 
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information of [appellant] and Cynthia, were able to 

eventually locate them both the same day. As the 

police arrived at Cynthia’s residence to arrest them, 

[appellant] went to the apartment of Erica Martinez, 

a neighbor who lived in that same building, and 

banged on her apartment door. When Ms. Martinez 

opened the door, [appellant] stated, “I need to hide 

in your apartment.” Ms. Martinez refused, and 

[appellant] was arrested at that time.

[Footnote 13] Ms. Beltran testified that 

she smoked the angel dust, but did not 

see either [appellant] or Cynthia do so.

PCRA court opinion, 9/16/15 at 2-4 (citations to the notes of testimony 

omitted).

The PCRA court also set forth the following procedural history:

On July 15, 2010, following a jury 

trial[Footnote 1] before this Court, [appellant] was 

found guilty of murder of the second degree (H-2), 

robbery (F-1), and carrying a firearm without a 

license (F-3).[Footnote 2] That same day, after the 

jury returned its verdict, [appellant] pled guilty to 

the charge of persons not to possess firearms 

(F-2).[Footnote 3] Sentencing was deferred until 

August 3, 2010, at which time [appellant] was 

sentenced to the mandatory term[Footnote 4] of life 

in prison.[Footnote 5]

[Footnote 1] At trial, [appellant] was 

represented by Marit Anderson, Esquire 

and Andrea Konow, Esquire of the 

Defender Association of Philadelphia.

[Footnote 2] 18 Pa.C.S.[A.] §§ 2502(b), 

3701(a)(1)(i), and 6106(a)(1), 

respectively. [Appellant] was found not 

guilty of criminal conspiracy, 

18 Pa.C.S.[A.] § 903. [Appellant] was 

tried with a co-defendant, 

Cynthia Alvarado, who was also found 
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guilty of murder of the second degree 

(H-2) and robbery (F-1).

[Footnote 3] 18 Pa.C.S.[A.] 

§ 6105(a)(1). On August 3, 2010, 

[appellant] consolidated three open 

cases and pled guilty to the following 

charges: escape (F-3) (CP-51-CR0001865-2010), aggravated assault by a 

prisoner (F-3) (CP-51-CR-0005962-

2010), and robbery (F-1), criminal 

conspiracy (F-1), and possessing 

instruments of crime (PIC) (F-1) (CP-51-

CR-0004737-2009).

[Footnote 4] 18 Pa.C.S.[A.] § 1102(a).

[Footnote 5] The robbery charge merged 

with the charge of second degree murder 

for sentencing purposes. As to the 

charge of carrying a firearm without a 

license, [appellant] was sentenced to a 

concurrent term of not less than 3 1⁄2 nor 

more than 7 years [of] imprisonment. 

As to the charge of persons not to 

possess firearms, to which [appellant] 

pleaded guilty, [appellant] was 

sentenced to a concurrent term of not 

less than five nor more than ten years 

[of] imprisonment. As to the charge of 

robbery, for which [appellant] had pled 

guilty, [appellant] was sentenced to a 

consecutive term of not less than 8 nor 

more than 20 years [of] imprisonment. 

As to the charge of criminal conspiracy, 

to which [appellant] pled guilty, 

[appellant] was sentenced to a 

concurrent term of not less than 7 nor 

more than 20 years [of] imprisonment. 

As to the charge of PIC, to which 

[appellant] pled guilty, [appellant] was 

sentenced to a concurrent term of not 

less than 1 nor more than five years [of] 

imprisonment. As to the charge of 
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escape, to which [appellant] pled guilty, 

[appellant] was sentenced to a 

concurrent term of not less than 2 1⁄2 nor 

more than five years [of] imprisonment. 

As to the charge of aggravated 

harassment by prisoner, to which 

[appellant] pled guilty, [appellant] was 

sentenced to a concurrent term of not 

less than 2 1⁄2 nor more than five years 

[of] imprisonment.

Petitioner filed a timely notice of appeal on 

August 16, 2010. On March 20, 2012, the Superior 

Court affirmed [appellant’s] judgment of sentence, 

and on January 30, 2013, our Supreme Court denied 

[appellant’s] petition for allowance of 

appeal.[Footnote 6]

[Footnote 6] Commonwealth v. 

Alvarado, No. 2366 EDA 2010, slip op. 

(Pa.Super., March 20, 2012) 

(memorandum opinion), allocatur 

denied 185 EAL 2012 (Pa., Jan. 30, 

2013).

On February 28, 2013, [appellant] filed a 

timely pro se PCRA petition. Counsel was 

appointed[Footnote 7] and, on October 11, 2014, 

filed a Finley “no merit” letter and motion to 

withdraw as counsel.[Footnote 8] On February 5, 

2015, having reviewed the pleadings and conducted 

an independent review, this Court sent [appellant] 

notice of its intent to dismiss his claims without a 

hearing pursuant to Pa.R.Crim.P. 907 (907 Notice). 

Consistent with the 907 Notice, [appellant’s] PCRA 

petition was dismissed on March 13, 2015. This 

timely appeal followed.

[Footnote 7] Janis Smarro, Esquire, was 

appointed to represent [appellant] on 

collateral attack.

[Footnote 8] Commonwealth v. Finley, 

550 A.2d 213 (Pa.Super. 1988).
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Id. at 1-2.

Appellant raises the following issues for our review:

1. Whether the PCRA court erred by dismissing 

[appellant’s] PCRA petition alleging ineffective 

assistance of counsel and [c]onfrontation right 

violations, where [appellant’s] [c]onfrontation 

rights were violated when having denied a 

motion to sever co-defendant Cynthia 

Alvarado’s trial from [appellant’s] trial, the trial 

court admitted the statements that 

non-testifying co-defendant Cynthia Alvarado 

had given to police and the prosecutor’s 

opening statements undid the redaction. 

[Appellant’s] 6th Amendment right to effective 

assistance of counsel was violated, where trial 

counsel failed to object to the [c]onfrontation 

violations. [Appellant’s] rule-based and 

Article I, Sec. 9 rights to effective assistance of 

counsel were violated, where PCRA counsel 

filed a no-merit letter despite existence of 

these meritful [sic] claims.

2. Whether the PCRA court erred by dismissing 

[appellant’s] PCRA petition alleging ineffective 

assistance of counsel based on counsel’s failure 

to interview Marvin Kennedy and eyewitness 

Mark Vandegrift (who witnessed the incident, 

and identified [and] spoke to the “robbery 

victim” drug dealer “Albert”), and for failing to 

subsequently call them to testify at trial.

Appellant’s brief at 4.

We limit our review of a PCRA court’s decision to examining whether 

the record supports the PCRA court’s findings of fact and whether its 

conclusions of law are free from legal error. Commonwealth v. Mason, 

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s 
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findings and the evidence of record in a light most favorable to the prevailing 

party. Id.

To be entitled to PCRA relief, the defendant bears the burden of 

establishing, by a preponderance of the evidence, that his conviction or 

sentence resulted from one or more of the circumstances enumerated in 

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i) 

and (ii); see also Mason, 130 A.3d at 618 (citations omitted).

Here, appellant’s claims assert that his trial and PCRA counsel provided 

ineffective assistance.

Counsel is presumed effective, and in order to 

overcome that presumption a PCRA petitioner must 

plead and prove that: (1) the legal claim underlying 

the ineffectiveness claim has arguable merit; 

(2) counsel’s action or inaction lacked any 

reasonable basis designed to effectuate petitioner’s 

interest; and (3) counsel’s action or inaction resulted 

in prejudice to petitioner. With regard to reasonable 

basis, the PCRA court ‘does not question whether 

there were other more logical courses of action 

which counsel could have pursued; rather, [the 

court] must examine whether counsel’s decisions 

had any reasonable basis. 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, a petitioner 

must show that there is a reasonable probability 

that, but for counsel’s actions or inactions, the result 

of the proceeding would have been different. Failure 
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to establish any prong of the [] test will defeat an 

ineffectiveness claim. 

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

Appellant first contends that PCRA counsel was ineffective in failing to 

challenge the effectiveness of trial counsel because trial counsel, 

Attorneys Marit Anderson and Andrea Konow, (1) failed to move to sever 

appellant’s trial from that of his co-defendant, Cynthia Alvarado; (2) failed to 

object when the Commonwealth read Ms. Alvarado’s redacted statement to 

the jury because the redaction failed to comply with Bruton v. United 

States, 391 U.S. 123 (1968); and (3) failed to object to the 

Commonwealth’s opening statement because it referred to appellant by 

either his name or “defendant” 28 times and this somehow negated the 

redaction in violation of Bruton.

Our review of the record reveals that on February 5, 2015, the PCRA 

court filed its notice of intent to dismiss appellant’s PCRA petition pursuant 

to Pa.R.Crim.P. 907 (Rule 907 Notice). Appellant then filed a timely 

response to the PCRA court’s Rule 907 Notice. In that response, however, 

appellant did not allege ineffective assistance of PCRA counsel. 

Consequently, appellant’s failure to raise his claims of ineffectiveness of 

PCRA counsel in his response to the Rule 907 Notice results in waiver of 

those claims on appeal. See Commonwealth v. Ford, 44 A.3d 1190, 1198 
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(Pa.Super. 2012) (finding that “when counsel files a Turner/Finley[

1

] 

no-merit letter to the PCRA court, a petitioner must allege any claims of 

ineffectiveness of PCRA counsel in a response to the court’s notice of intent 

to dismiss.”); see also Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 

(Pa. 2009).

With respect to appellant’s underlying claims on his first issue on 

appeal, appellant first alleges that trial counsel were ineffective for failing to 

move to sever appellant’s trial from that of his co-defendant, 

Cynthia Alvarado. Appellant then further alleges ineffectiveness for trial 

counsel’s failure to object to two Bruton violations.

With respect to the motion to sever, the record belies appellant’s 

contention that trial counsel failed to move for severance. The record 

reflects that trial counsel filed a motion to sever on August 18, 2009. The 

record further reflects that Attorney Anderson again objected to a joint trial 

at a pre-trial hearing when she stated, “We continue our vociferous objection 

to the cases being tried together.” (Notes of testimony, 7/21/10 at 77.) 

Additionally, defense counsel renewed the motion immediately prior to jury 

selection, and the trial court denied the motion. (Notes of testimony, 7/8/10 

at 131-132, 144.) Therefore, this claim lacks arguable merit.

 

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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With respect to appellant’s underlying claim of trial counsel’s 

ineffectiveness for failing to object to appellant’s claimed Bruton violations, 

the record reflects that although appellant included this claim in his 

Pa.R.A.P. 1925(b) statement, he failed to preserve this issue in his PCRA 

petition and did not raise it in his response to the PCRA court’s Rule 907 

Notice. Therefore, appellant waives this issue on appeal. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”). See also Commonwealth 

v. Smith, 121 A.3d 1049, 1055 (Pa.Super. 2015) (recognizing that a PCRA 

petitioner is unable to raise his claims for the first time in his Rule 1925(b) 

statement).

Appellant finally claims that trial counsel were ineffective for failing to 

interview Marvin Kennedy and Mark Vandegrift and for failing to call them as 

defense witnesses.

When the trial court conducts a colloquy with the defendant that 

demonstrates that the defendant knowingly, voluntarily, and intelligently 

decided against calling defense witnesses, a subsequent claim that counsel 

was ineffective for failing to call such witnesses lacks arguable merit. See 

Commonwealth v. Pander, 100 A.3d 626, 642-643 (Pa.Super. 2014); see 

also Commonwealth v. Rios, 920 A.2d 790, 802-803 (Pa. 2007) 

(concluding that a claim of ineffective assistance of counsel in failing to call 

alibi witnesses lacked arguable merit where the trial court conducted a 
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colloquy of defendant regarding whether he agreed with the decision not to 

call witnesses); Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002) 

(finding that because defendant “expressed the view that the decision not to 

call alibi witnesses was his as well as trial counsel’s, and his decision has not 

been shown to have been unknowingly, involuntarily, or unintelligently 

made, this allegation of ineffectiveness lacks merit.”).

Here, the following colloquy took place:

THE COURT: . . . . So have either of you taken any 

drugs, alcohol, or medication in the last 12 hours?

. . . .

[APPELLANT]: No.

. . . .

THE COURT: . . . . Do you each read, write, and 

understand the English language?

. . . .

[APPELLANT]: Yes.

THE COURT: Have you ever been diagnosed with a 

mental illness?

. . . .

[APPELLANT]: No.

. . . .

THE COURT: . . . . Now, were there any witnesses 

that either of you wanted to call or anything that you 

discussed with your attorney that is not going to 

happen? Because we’re about to finish this 

afternoon and so if there’s nobody coming to testify 
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and you thought there was, this is the moment to 

tell me.

. . . .

[APPELLANT]: Nobody.

. . . .

THE COURT: And do you each understand that you 

are bound by -- which means stuck with -- the 

answers that you’re giving me here under oath in 

open court?

. . . .

[APPELLANT]: Yes.

THE COURT: So you can’t come back later and say, 

well, I really did have witnesses, but I answered this 

way because my lawyer said if we delayed anything, 

you’d get mad.

Believe it or not, people actually say these 

things after the fact.

If you have anything to say, this is the 

moment to say it and you can’t later blame your 

lawyer for telling you. You’re under oath, and this is 

when you’re answering me.

Do you understand that?

. . . .

[APPELLANT]: Yeah, I understand.

Notes of testimony, 7/13/10 at 159-165.

Based on this colloquy, appellant’s claim that trial counsel were 

ineffective for failing to interview and call Mr. Kennedy and Mr. Vandegrift 

lacks arguable merit.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/18/2016