J-S84027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

JOSE LUIS GONZALEZ, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1368 MDA 2017

Appeal from the PCRA Order August 1, 2017

In the Court of Common Pleas of Lebanon County Criminal Division at 

No(s): CP-38-CR-0000175-2013

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 02, 2018

Jose Luis Gonzalez, Jr., appeals from the order, entered in the Court of 

Common Pleas of Lebanon County, denying him relief on his first petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-46. 

After review, we affirm.

On July 11, 2013, a jury convicted Gonzalez of possession with intent to 

deliver,1 possession of a controlled substance,2 and possession of drug 

paraphernalia.3 At trial, Nicholas Sidelnick, Esquire, represented Gonzalez. 

On August 28, 2013, the trial court sentenced Gonzalez to an aggregate term 

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1 35 P.S. § 780-113(a)(30).

2 35 P.S. § 780-113(a)(16).

3 35 P.S. § 780-113(a)(32).
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of one to five years’ incarceration in a state correctional institution.

4

 Gonzalez 

filed timely post-sentence motions, which the trial court denied on January 3, 

2017. Gonzalez timely appealed, and on February 2, 2015, this Court affirmed 

his judgment of sentence.

On November 12, 2015, Gonzalez filed a pro se PCRA petition, his first; 

however, his petition was misfiled and mislaid and did not come to the PCRA

court’s attention until early 2017. On August 1, 2017, the PCRA court held an 

evidentiary hearing. The same day, the PCRA court denied Gonzalez’s PCRA 

petition. This timely appeal follows. Both Gonzalez and the PCRA court have 

complied with Pa.R.A.P. 1925(b). On appeal, Gonzalez raises the following 

issues for our review:

1. Whether [t]rial [c]ounsel [] was ineffective for failing to 

interview witnesses on [Gonzalez’s] behalf regarding the illegal 

search and seizure?

2. Whether [t]rial [c]ounsel [] was ineffective for failing to file a 

[s]uppression [m]otion based on the illegal search and seizure?

Brief of Appellant, at 4.

We review the denial of a PCRA petition to determine whether the record 

supports the PCRA court’s findings and whether its order is otherwise free of 

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This 

Court grants great deference to the findings of the PCRA court if they are 

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. 

Super. 2007). We give no deference, however, to the court’s legal 

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4 See 42 PA.C.S.A. § 9762(b).
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conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 

2012). 

To be eligible for relief pursuant to the PCRA, Gonzalez must establish, 

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S.A. § 9543(a)(2). Gonzalez 

must also establish that the issues raised in the PCRA petition have not been 

previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An allegation of 

error “is waived if the petitioner could have raised it but failed to do so before 

trial, at trial . . . on appeal or in a prior state post[-]conviction proceeding.” 

42 Pa.C.S.A. § 9544(b).

Instantly, Gonzalez’s claims allege ineffective assistance of trial counsel. 

Specifically, Gonzalez claims Attorney Sidelnick failed to pursue and litigate 

what Gonzalez characterizes as a suppression issue. The law presumes 

counsel has rendered effective assistance. Commonwealth v. Rivera, 10 

A.3d 1276, 1279 (Pa. Super. 2010). The burden of demonstrating 

ineffectiveness rests on appellant. Id. to satisfy this burden, appellant must 

plead and prove by a preponderance of the evidence that: (1) his underlying 

claim is of arguable merit; (2) the particular course of conduct pursued by 

counsel did not have some reasonable basis designed to effectuate his 

interest; and (3) but for counsel’s ineffectiveness, there is a reasonable 

probability that the outcome of the challenged proceedings would have been 

different. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
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Gonzalez first avers Attorney Sidelnick failed to contact and/or interview 

his mother, Wanda Gonzalez, regarding his arrest and the subsequent search 

of his mother’s residence. Failure to call a witness is not per se ineffective 

assistance of counsel, for such a decision implicates matters of trial strategy. 

Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa. Super. 2008). It is 

the post-conviction petitioner’s burden to demonstrate that trial counsel had 

no reasonable basis for declining to call a particular person as a witness. Id. 

Generally, where matters of strategy and tactics are concerned, counsel’s 

assistance is deemed constitutionally effective if he chose a particular course 

that had some reasonable basis designed to effectuate his client’s interest. 

Id.

Furthermore, failure to investigate and interview a witness, as a basis 

for a claim of ineffective assistance of counsel, overlaps with declining to call 

a witness, since the petitioner must prove: (1) the witness existed; (2) the 

witness was available to testify; (3) counsel knew of, or should have known 

of, the existence of the witness; (4) the witness was willing to testify; and (5) 

the absence of the testimony was so prejudicial as to have denied the 

defendant a fair trial. Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. 

Super. 2014). “[T]o meet the prejudice prong of the ineffectiveness [of 

counsel] standard, a defendant must show that there is a reasonable 

probability that but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Commonwealth v. Reed, 42 A.3d 

314, 319 (Pa. Super. 2012) (internal quotations and citations omitted).
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At Gonzalez’s evidentiary PCRA hearing, Attorney Sidelnick, during 

direct examination, discussed his communications with Wanda Gonzalez:

[PCRA COUNSEL]: Did you interview his mother about this case?

[TRIAL COUNSEL]: Yes.

Q: Why?

A: Well, a couple [of] reasons. One, like I said, he had other cases 

that were pending, so part of that contact was to possibly get 

clothing for him for trial. But[,] I had called his mother on – it 

would have been in June of 2013. That was to discuss, I believe, 

as to the attempted homicide case regarding whether she[] [had] 

been interviewed for the grand jury proceedings. Some discussion 

there about [Gonzalez’s] brother also being interviewed for the 

grand jury proceedings. During that interview[,] I don’t recall if 

we discussed the search. She had not brought that up.

I also contacted her again July 10, 2013. The phone number I 

had was [REDACTED]. I had left a message for her, and I don’t 

think she ever returned that call.

Q: Did you end up filing an omnibus pretrial motion to suppress 

the evidence in the case?

A: No.

Q: Why not?

A: Well, number one, when I spoke with [Gonzalez] he had 

concerns about when the police had come in, but he had 

not said anything about – his mom saying, hey, I didn’t 

consent to this. He had issues about the way they spoke to 

his mother, but not that she had not consented.

The officer’s report had said in there that she did consent. 

I did tell him, as he testified, that as to that it would be a credibility 

decision for a Judge at a pretrial hearing as to, hey, did his mom 

actually consent or, you know, do you believe what the officers 

are saying, that they talked to her and she gave consent. So I 
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guess in that type of discussion we had there it was, you know, 

discussed somewhat there.

N.T. PCRA Hearing, 8/1/17, at 12-14 (emphasis added).

Attorney Sidelnick testified that he was aware Gonzalez’s mother may 

be a potential witness and had contacted her to discuss Gonzalez’s case. 

However, despite attempting to contact Gonzalez’s mother on at least two 

separate occasions, she ceased returning his calls. Additionally, neither 

Gonzalez nor Wanda Gonzalez informed Attorney Sidelnick that the police 

lacked consent to conduct a warrantless search, which was consistent with the 

police report Attorney Sidelnick reviewed.

Furthermore, there is no indication in the record that Wanda Gonzalez 

was willing to testify that she did not give the police consent to search her 

home. Moreover, the PCRA court found credible Attorney Sidelnick’s

testimony that, prior to trial, neither Wanda Gonzalez nor Gonzalez raised a 

suppression issue premised on lack of consent. Commonwealth v. 

Johnson, 51 A3d 237, 242-43 (Pa. Super. 2012) (on appeal from denial of 

relief under PCRA, the PCRA court’s credibility determinations, when 

supported by the record, are binding on the appellate court). Therefore, we 

discern no error by the PCRA Court in determining that Gonzalez was not

prejudiced by Sidelnick’s decision not to call Wanda Gonzalez as a witness at 

trial. Reed, supra; Fears, supra.

Gonzalez next avers that Attorney Sidelnick rendered ineffective 

assistance of counsel for failing to file a suppression motion as to the 

warrantless search of Wanda Gonzalez’s home. 
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Here, the PCRA court found credible Attorney Sidelnick’s 

aforementioned testimony that Gonzalez never advised him to raise a consent 

to search issue in a pretrial suppression motion. Rather, Attorney Sidelnick 

discussed the possibility that police coerced Wanda Gonzalez’s consent, but 

he ultimately determined that he would not pursue Gonzalez’s coercion 

suppression theory. For Gonzalez to prevail on his claim, he must provide an 

evidentiary basis for which to find Attorney Sidelnick’s decision to forego filing 

a pre-trial suppression motion unreasonable. See Commonwealth v. 

Reyes-Rodriguez, 111 A.3d 775, 783 (Pa. Super. 2015) (for matters of trial 

strategy, PCRA petition claiming ineffective assistance of counsel must provide 

evidentiary basis on which to find trial counsel’s actions unreasonable). 

In support of his argument, Gonzalez argues that Wanda Gonzalez 

would testify that the police coerced her consent and/or that she never 

consented to the search. However, Wanda Gonzalez was not present at the 

PCRA hearing, and thus, Gonzalez proffered no witness testimony suggesting 

she did not consent to the search or that her consent was coerced.

5

 In light 

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5 At Gonzalez’s PCRA hearing, the following exchange occurred between 

Gonzalez and the court as follows:

GONZALEZ: My mother[] [is] willing to testify for this, man. 

THE COURT: She’s not here. This was your shot.

GONZALEZ: She works in North Carolina at the Naval Base. It’s 

hard for her to come out here.
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of the foregoing, we discern no error by the PCRA court in determining that 

Gonzalez failed to establish that Attorney Sidelnick acted unreasonably in not 

filing a pre-trial suppression motion. Fulton, supra (petitioner must establish 

underlying claim has arguable merit).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/2/2018

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THE COURT: I know, but it’s your shot, and if you have a witness 

who you claim would have been available to testify at trial, it was 

incumbent upon you to present that witness today. You failed to 

do that. For whatever reason, you failed to do that.

N.T. PCRA Hearing, 8/1/17 at 20-21.