J-S26014-17

* Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

XAVIER J. RAMOS

Appellant No. 1746 MDA 2016

Appeal from the PCRA Order October 11, 2016

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0001648-2013

BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED JUNE 23, 2017

Xavier Ramos appeals from the October 11, 2016 order denying him 

PCRA relief. We affirm.

We previously set forth the facts underlying Appellant’s conviction in 

our decision denying relief on direct appeal.

On July 29, 2013, the victim, M.W., was thirteen years old. She 

spent the previous night sleeping on the sofa in Appellant's 

house because she was babysitting for Appellant and his wife's 

young child. Appellant and his wife are M.W.'s uncle and aunt.

After M.W. awoke, Appellant carried her to his bedroom, placed 

her on his bed, and left. M.W. laid on the bed and watched 

Appellant's children play a computer game in the bedroom. 

Appellant reentered the room, laid behind M.W. on the bed and 

began to “hump” her from behind by rubbing his penis against 

her buttocks. He also placed his hand down M.W.'s pants and 

began to move it sideways on her labia. At trial, M.W. testified 

that she did not say anything at the time because she was 

scared and in shock. The entire incident lasted approximately 
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eight minutes after which M.W. went to the bathroom. When 

M.W. returned from the bathroom, Appellant picked her up, spun 

her around, and told her that he loved her.

Commonwealth v. Ramos, 135 A.3d 668 (Pa.Super. 2015) (unpublished 

memorandum). Appellant’s jury trial proceeded in his absence when he 

failed to appear. He was convicted of aggravated indecent assault, 

corruption of minors, and indecent assault, and received an aggregate 

sentence of six to fifteen years incarceration. Appellant did not seek further 

review of our decision. 

Appellant thereafter filed a pro se petition for PCRA relief. Appointed 

counsel filed an amended petition, which was denied following an evidentiary 

hearing. Appellant filed a timely notice of appeal and complied with the 

PCRA court’s order to file a concise statement. The court issued its opnion in 

response and the matter is now ready for our review. Appellant raises two 

issues for our consideration. 

I. Trial counsel was ineffective for failing to adequately 

review discovery materials and to conduct independent 

interviews of witnesses named in those materials.

II. Trial counsel was ineffective for failing to investigate, 

develop, and present mitigating evidence at sentencing as 

to Defendant’s life history and background.

Appellant’s brief at 4. 

“[W]e review a denial of PCRA relief to determine whether the findings 

of the PCRA court are supported by the record and free of legal error.” 

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa.Super. 2017) 
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(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). Both 

of Appellant’s claims allege that the PCRA court erred in not finding that trial 

counsel was ineffective. To obtain relief on an ineffective assistance of 

counsel claim, the PCRA petitioner must establish that “(1) the underlying 

claim has arguable merit; (2) no reasonable basis existed for counsel's 

action or failure to act; and (3) he suffered prejudice as a result of counsel's 

error, with prejudice measured by whether there is a reasonable probability 

the result of the proceeding would have been different.” Commonwealth 

v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citing Commonwealth v. 

Pierce, 786 A.2d 203, 213 (Pa. 2001)). A PCRA court's credibility findings 

are to be accorded great deference, and where supported by the record, 

such determinations are binding on a reviewing court. Commonwealth v. 

Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998). A PCRA court’s legal conclusions, 

however, are reviewed de novo. Commonwealth v. Chmiel, 30 A.3d 

1111, 1127 (Pa. 2011). 

Appellant’s first assignment of error attacks trial counsel’s purported 

failure to investigate Appellant’s stepchildren, T.L. and C.L., as potential 

witnesses. As a general proposition, the Sixth Amendment’s guarantee of 

effective assistance of counsel requires a lawyer to “undertake reasonable 

investigations or make reasonable decisions that render particular 

investigations unnecessary.” Commonwealth v. Basemore, 744 A.2d 

717, 735 (Pa. 2000) (citing Strickland v. Washington, 466 U.S. 668, 691 
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(1984)). The duty to investigate derives from counsel’s function “to make 

the adversarial testing process work in the particular case.” Strickland, 

supra at 689. This duty encompasses the need to explore avenues of 

defense, including possible defense witnesses. “[T]hat testing process 

generally will not function properly unless defense counsel has done some 

investigation into the prosecution's case and into various defense 

strategies[.]” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) 

(citation omitted). 

With respect to counsel’s failure to present the testimony of T.L. and 

C.L., we note the distinction between a claim that counsel neglected to call a 

witness and a claim that counsel failed to interview a witness. Obviously, 

trial counsel cannot elicit the testimony of a witness unknown to him, nor is 

counsel in a position to assess as a matter of trial strategy whether a 

particular witness would be helpful if the attorney does not know what the 

witness might say. Therefore, it can be unreasonable per se to conduct no 

investigation into known witnesses. Commonwealth v. Stewart, 84 A.3d 

701, 712 (Pa.Super. 2013) (en banc).

Appellant largely confines his argument to this point; i.e., he maintains 

that it was unreasonable per se not to interview or speak to T.L. and C.L. 

since these witnesses were mentioned in materials provided during discovery 

as being present in the home at the time of these crimes. However, even if 
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counsel’s actions were constitutionally unreasonable, the PCRA petitioner 

must still establish prejudice. 

Appellant's penultimate issue is that trial counsel was ineffective 

in failing to interview and present the testimony of four 

witnesses. . . . Neglecting to call a witness differs from failing to 

investigate a witness in a subtle but important way. The failure 

to investigate presents an issue of arguable merit where the 

record demonstrates that counsel did not perform an 

investigation. It can be unreasonable per se to conduct no 

investigation into known witnesses. Importantly, a petitioner 

still must demonstrate prejudice. . . . 

In this respect, a failure to investigate and interview a witness 

claim overlaps with declining to call a witness since the petitioner 

must prove: (i) the witness existed; (ii) the witness was 

available to testify; (iii) counsel knew of, or should have known 

of, the existence of the witness; (iv) the witness was willing to 

testify; and (v) the absence of the testimony was so prejudicial 

as to have denied the defendant a fair trial. 

Commonwealth v. Pander, 100 A.3d 626, 638–39 (Pa.Super. 2014) (en 

banc) (quotation marks and citations omitted)

The trial court determined that Appellant failed to establish prejudice 

since T.L. and C.L. did not testify at the PCRA hearing. We agree. 

Assuming, arguendo, that PCRA counsel ineffectively failed to investigate1

____________________________________________

1

 Trial counsel testified that Appellant mentioned T.L. and C.L. as witnesses, 

and counsel asked Appellant to provide contact information and/or have the 

witnesses contact him. “[D]ifferent light falls upon counsel's performance 

depending upon whether he asked and was not told, or he did not ask and 

therefore was not told.” Commonwealth v. Basemore, 744 A.2d 717, 735 

(Pa. 2000). Since we find that Appellant failed to prove prejudice, we need 

not determine whether counsel’s failure to further investigate the named 

(Footnote Continued Next Page)
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these witnesses, Appellant has offered no proof whatsoever that he was 

prejudiced by these failures, since the witnesses did not testify at the PCRA 

hearing. Any notion that Appellant was prejudiced rests on sheer 

speculation that the witnesses would have ultimately offered helpful 

testimony. Guesswork cannot serve to satisfy Appellant’s burden. The 

prejudice inquiry requires an analysis of the testimony that these witnesses 

would have offered, not simply proof that counsel ineffectively failed to 

interview the witnesses2. See Commonwealth v. Dennis, 950 A.2d 945, 

964 (Pa. 2008) (“Appellant failed to carry his burden before the PCRA court. 

. . . without [the witnesses'] testimony Appellant cannot demonstrate 

prejudice sufficient to establish ineffectiveness of trial counsel.”). Similarly, 

Appellant has failed to plead and prove his claim of ineffective assistance by 

declining to present the witnesses at the evidentiary hearing. Compare 

Commonwealth v. Stewart, supra (affirming grant of new trial where 

trial counsel failed to interview alibi witness who testified at the evidentiary 

(Footnote Continued) _______________________

witnesses in light of their familial relationship to Appellant was reasonable 

under the second Pierce prong.

2 The only discussion of prejudice is Appellant’s argument that “Here, both 

[T.L. and C.L.] were present in the home at the time of the alleged incident, 

making them eye witnesses. . . . Thus, their testimony would have been 

highly relevant, and could have led to a different outcome at trial.” 

Appellant’s brief at 13. However, establishing prejudice requires much more 

than relevant evidence; it requires a reasonable probability that the result 

would have been different. 
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hearing). “If a petitioner fails to prove any of [the ineffectiveness] prongs, 

his claim fails.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 

2013). 

We now address Appellant’s second claim, which is that trial counsel 

ineffectively failed to present mitigating circumstances to the sentencing 

court. Appellant avers that counsel failed to inform the trial court that 

Appellant had attempted to commit suicide and that Appellant had been 

sexually assaulted in the past. The trial court’s opinion indicates that trial 

counsel raised Appellant’s suicide attempt at an earlier juncture in the 

proceedings and the court was aware of that fact at sentencing. 

Additionally, Appellant admitted that he never told his counsel about the 

prior assault. N.T., PCRA Hearing, 5/16/16, at 24. Appellant not only fails 

to explain why or how counsel should have independently uncovered this 

information, he fails to explain how he was prejudiced by the failure to do 

so. Therefore, Appellant is not entitled to a new sentencing hearing. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2017