J-S35002-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

RODRIGO MACEDO ARANA,

Appellant No. 134 MDA 2018

Appeal from the PCRA Order Entered December 18, 2017

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0000004-2011

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 27, 2018

Appellant, Rodrigo Macedo Arana, appeals from the post-conviction 

court’s December 18, 2017 order denying his petition filed under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, 

we affirm.

On July 21, 2011, a jury convicted Appellant of first-degree murder

based on the following facts:

 On September 11, 201[0] into the early morning hours of 

September 12, 201[0,] Alfredo Uribe, Jr., Axel Charicata, Mario 

Ceballos and Julio Romero went to a “Sweet 15” birthday party. 

They met [Appellant] at the party.[1] Uribe, Ceballos, Romero, 

and [Appellant] then proceeded to a second “after party.” The 

men left the “after party” and tried to purchase beer at a local bar. 

Romero remained in the silver Dodge Intrepid the group traveled 

____________________________________________

1 The record states that Appellant was born in November of 1990, making him 

19 years old in September of 2010.
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in. [Appellant] and Ceballos entered the bar to try to purchase 

beer. Uribe waited outside the bar because he did not believe he 

would be permitted entry due to his youthful appearance. After a 

short time, Uribe returned to the vehicle where Romero was. The 

vehicle was approximately one block away from the bar. During 

the course of the evening, Uribe entered the vehicle and “found” 

and retrieved a firearm from under the front passenger seat. 

Uribe put the firearm in his waistband and stated he intended to 

keep the gun and planned to attempt to sell it at school. Upon 

further examination from the [trial court], Uribe was unsure of the 

exact point in the evening when he retrieved the firearm. 

Elsewhere, [Appellant] and Ceballos left the bar unable to [ob]tain 

beer. They then came in contact with the victim, [W.T.], aged 

fifteen (15), and two of his friends, [D.D.], aged fourteen (14)[,]

and [A.R.], aged sixteen (16). An argument ensued between the 

two groups, although it is unclear which group spoke the first 

words. Ceballos testified that he saw the victim, [W.T.], “messing 

with his waist” and so he asked him “yo, what are you reaching 

for,” believing he may have a firearm. Ceballos further testified 

that he went to check [the victim’s] waist, [the victim] moved 

Ceballos’[s] hand, and Ceballos then hit the victim. [Appellant] 

and the victim engaged in a fist fight, with [Appellant] clearly 

winning the fist fight. At some point during the scuffle[,] Ceballos 

removed the victim’s sneakers. [D.D.] and [A.R.] both testified 

that they ran before the fist fight began. Uribe further testified 

that after the fight had progressed and the victim was already 

down on the ground, and after he too had participated in hitting 

the victim, Uribe believed the victim to be reaching for his 

waistband again. Uribe removed the firearm from his waistband 

and [Appellant] grabbed the gun, firing eight (8) to nine (9) 

rounds into the victim. [Appellant], Uribe, Ceballos, and Romero 

then left the scene in Romero’s vehicle. 

Commonwealth v. Arana, No. 1688 MDA 2011, unpublished memorandum 

at 1-2 (Pa. Super. filed Dec. 21, 2012) (quoting Trial Court Opinion, 2/1/12, 

at 1-3) (citations omitted)).

On August 31, 2011, Appellant was sentenced to life imprisonment 

without the possibility of parole. He filed a timely direct appeal, and this Court 

affirmed. See Arana, supra. Our Supreme Court denied his subsequent 
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petition for allowance of appeal on July 16, 2013. Commonwealth v. Arana, 

69 A.3d 599 (Pa. 2013).

On March 6, 2014, Appellant filed a timely, pro se PCRA petition and 

counsel was appointed. After being granted several extensions of time, 

counsel filed an amended petition on Appellant’s behalf on July 27, 2017. 

Therein, counsel raised three claims of ineffective assistance of Appellant’s 

trial counsel. On October 23, 2017, the PCRA court issued a Pa.R.Crim.P. 907 

notice of its intent to deny Appellant’s petition without a hearing. Appellant 

did not respond and, therefore, on December 18, 2017, the court filed an 

order denying his petition.

Appellant filed a timely notice of appeal, and he also timely complied 

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Herein, he presents three questions for our 

review:

1. Did the PCRA [c]ourt err in not scheduling a hearing and not 

finding that trial counsel provided ineffective assistance of 

counsel when she interfered with Appellant’s right to testify and 

when she gave specific advice so unreasonable as to prevent 

him from presenting his claim of mistaken belief self-defense 

consistent with [v]oluntary [m]anslaughter?

2. Did the PCRA [c]ourt err in not scheduling a hearing and not 

finding that trial counsel provided ineffective assistance of 

counsel when she interfered with Appellant’s right to testify and 

when she gave specific advice so unreasonable as to prevent 
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him from presenting his claim of mistaken belief or self-defense 

consistent with [v]oluntary [m]anslaughter?[2]

3. Did the PCRA [c]ourt err in not scheduling a hearing and not 

finding that trial counsel provided ineffective assistance of 

counsel when she failed to investigate and call witnesses even 

though she told the jury that she would provide character 

witnesses to testify about Appellant’s reputation in the 

community for being peaceful or nonviolent, and produced only 

a single family member?

Appellant’s Brief at 4.

We begin by recognizing that “[t]his Court’s standard of review from the 

grant or denial of post-conviction relief is limited to examining whether the 

lower court’s determination is supported by the evidence of record and 

whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 

520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 

(Pa. 1995)). Where, as here, a petitioner claims that he received ineffective 

assistance of counsel, our Supreme Court has stated that:

[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 “[i]neffective assistance of counsel which, in the 

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

____________________________________________

2 Appellant’s first two issues are identical in his Statement of the Questions 

portion of his brief. However, in the argument section of his brief, Appellant

alleges in his second issue that his trial counsel acted ineffectively by 

indicating in her opening statement that she would present certain evidence 

that she ultimately did not produce. See Appellant’s Brief at 15-18. This 

argument aligns with the second issue preserved in Appellant’s Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal, and discussed 

by the PCRA court in its opinion. See PCRA Court Opinion, 10/23/17, at 2, 3-

4. Accordingly, while we could deem Appellant’s second issue waived based 

on his failure to set it forth in his Statement of the Questions, we decline to 

do so, as that error does not impede our meaningful review of his argument.
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innocence could have taken place.” Generally, counsel’s 

performance is presumed to be constitutionally adequate, and 

counsel will only be deemed ineffective upon a sufficient showing 

by the petitioner. To obtain relief, a petitioner must demonstrate 

that counsel’s performance was deficient and that the deficiency 

prejudiced the petitioner. A petitioner establishes prejudice when 

he demonstrates “that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” ... [A] properly pled claim of 

ineffectiveness posits that: (1) the underlying legal issue has 

arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) actual prejudice befell the petitioner 

from counsel’s act or omission. 

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations 

omitted). We also note that, “[t]here is no absolute right to an evidentiary 

hearing.” Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 

2015) (en banc) (citation omitted). However, on appeal in a case such as 

Appellant’s, where the PCRA court did not conduct a hearing, “we examine the 

issues raised in light of the record to determine whether the PCRA court erred 

in concluding that there were no genuine issues of material fact and in denying 

relief without an evidentiary hearing.” Id. (citation and internal quotation 

marks omitted).

Appellant first contends that his trial counsel was ineffective for advising 

him to waive his right to testify at trial. As our Supreme Court has explained,

[t]he decision of whether or not to testify on one’s own behalf is 

ultimately to be made by the defendant after full consultation with 

counsel. In order to sustain a claim that counsel was ineffective 

for failing to advise the appellant of his rights in this regard, the 

appellant must demonstrate either that counsel interfered with his 

right to testify, or that counsel gave specific advice so 

unreasonable as to vitiate a knowing and intelligent decision to 

testify on his own behalf.
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Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations 

omitted).

Here, Appellant contends that his trial counsel interfered with his right 

to testify by not adequately consulting with him about that decision or fully 

explaining his case to him, including what defense theory counsel intended to 

pursue. Appellant claims that counsel could not have explained her defense 

strategy to him - and how his testifying would help or hinder that defense -

where the record demonstrates that counsel was herself confused about what 

defense theory she was advocating. For instance, Appellant avers that at 

times counsel pursued a ‘mistaken-belief’ (or ‘unreasonable belief’) defense,3

and at other points she argued that Appellant had a diminished capacity due 

to his consumption of alcohol on the night of the shooting.4 Appellant also 

contends that counsel unreasonably advised him not to testify because “his 

testimony would not be helpful.” Appellant’s Brief at 13. Appellant maintains 

that there was no logical reason for counsel to advise him as such, and her 

____________________________________________

3 See 18 Pa.C.S. § 2503(b) (“Unreasonable belief killing justifiable.--A 

person who intentionally or knowingly kills an individual commits voluntary 

manslaughter if at the time of the killing he believes the circumstances to be 

such that, if they existed, would justify the killing under Chapter 5 of this title 

(relating to general principles of justification), but his belief is unreasonable.”). 

4 “A defense of diminished capacity, whether grounded in mental defect or 

voluntary intoxication, is an extremely limited defense available only to those 

defendants who admit criminal liability but contest the degree of culpability 

based upon an inability to formulate the specific intent to kill. ... For a 

defendant who proves a diminished capacity defense, first-degree murder is 

mitigated to third-degree murder.” Commonwealth v. Hutchinson, 25 A.3d 

277, 312 (Pa. 2011) (citations omitted).
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doing so prejudiced him, because there was no other evidence to support a

mistaken-belief defense, which requires proof of his state of mind at the time 

of the shooting.

Appellant’s claim lacks arguable merit. First, the record does not 

support his allegation that counsel did not sufficiently consult with him prior 

to his waiving his right to testify. Just before closing arguments, the court 

asked Appellant if he had decided whether he wanted to testify, and Appellant 

responded that he did not. N.T. Trial, 7/19/11-7/21/11, at 418. Counsel then 

informed the court that she and Appellant had “discussed at length the rights 

he gives up by not testifying, [and] the benefits ... for him if he does not 

testify....” Id. Counsel stated that she “believe[d] [Appellant was] making a 

knowing, intelligent, [and] voluntary waiver of his right to take the stand in 

his own defense.” Id. The court then informed Appellant that he could 

“[a]bsolutely” change his mind and take the stand if he desired. Id. at 419. 

Appellant again confirmed that he did not want to testify. Id. When asked if 

he had any questions, Appellant stated that he did not. Id. Additionally, 

when asked if he was “satisfied with the representation of [his] attorney[,]” 

Appellant answered that he was. Id. 

Furthermore, the record belies Appellant’s claim that his counsel could 

not have adequately advised him about testifying because she had not formed

a clear defense strategy. Counsel argued throughout trial that Appellant could 

only be convicted of voluntary manslaughter under the mistaken-belief theory 

of section 2503(b). For instance, in counsel’s opening statement, she
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explained that Appellant had shot the victim under the mistaken belief that 

the victim was reaching for a gun. See id. at 50. There was evidence 

admitted during the Commonwealth’s case-in-chief that supported this 

defense, namely Appellant’s own statement to police that he shot the victim 

because he “saw [the victim] reaching for his hip[.]” Id. at 226, 392. 

Appellant’s counsel repeatedly reiterated Appellant’s mistaken-belief defense 

in closing arguments, see id. at 426, 428, 429, 432, and the trial court 

instructed the jury on that defense, id. at 467. While counsel did refer to 

Appellant’s intoxication as diminishing his capacity to form the specific intent 

to kill, see, e.g., id. at 422, counsel clearly centered her defense on 

contending that the jury could convict him only of voluntary manslaughter 

under a mistaken-belief defense. Therefore, the record belies Appellant’s 

assertion that counsel lacked a focused defense strategy and could not have 

effectively advised him on the impact his testimony would have on that 

defense.

Finally, we address Appellant’s claim that counsel advised him not to 

testify because his testimony would not be helpful. Appellant contends that 

counsel’s advice was unreasonable because there was no evidence 

establishing his state of mind at the moment he shot the victim, which was 

necessary to support his mistaken-belief defense. However, in Appellant’s 

confession to police, he stated that he shot the victim because he believed the 

victim was reaching for his hip. This evidence conveyed Appellant’s state of 

mind at the moment of the shooting, supported his mistaken-belief defense, 
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and made it unnecessary for him to take the stand and expose himself to a 

potentially damaging cross-examination. Therefore, Appellant has not 

established that counsel’s advice was “so unreasonable as to vitiate a knowing 

and intelligent decision to testify on his own behalf.” Nieves, 746 A.2d at

1104.

In sum, we perceive no genuine issue of material fact regarding 

Appellant’s first claim of ineffective assistance of counsel, premised on 

counsel’s advising him not to testify. Therefore, the PCRA court did not err in 

denying that claim without a hearing.

In Appellant’s second issue, he avers that counsel was ineffective for 

telling the jury, in her opening statement, that certain evidence would be 

presented to support Appellant’s mistaken-belief defense, but then not 

producing that evidence. Specifically, Appellant claims that counsel promised 

the jury that several of the victim’s friends would testify that they heard one 

of Appellant’s companions ask the victim, “what do you have?” Appellant’s 

Brief at 16. However, none of the victim’s friends testified as such. In regard 

to how he was prejudiced by this purported error by counsel, Appellant 

confusingly states the following:

In the end, the trial court provided a very brief mistaken 

belief charge; however, it did not instruct the jury on self-defense 

or diminished capacity. The trial court determined that: “Beyond 

the above instruction we do not believe that a self-defense 

[instruction] was warranted as the ground work was not laid 

throughout the trial.” Trial Court ... Opinion, 2/12/2012, p. 12. 

Accordingly, Appellant was prejudiced. 

Id. at 17. 
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Appellant’s prejudice argument is insufficient to demonstrate that 

counsel acted ineffectively. Appellant does not explain why, if the victim’s 

friends had testified as counsel said they would (i.e., that they heard 

Appellant’s cohort ask the victim what he was reaching for), it would have 

prompted the court to give an instruction on self-defense or diminished 

capacity.5 Indeed, this testimony would have only further supported the 

mistaken-belief defense, on which Appellant concedes the court instructed the 

jury. We also note that Appellant does not discuss why a self-defense 

instruction would have changed the outcome of his trial, given that it is clear

the victim did not actually possess a firearm. Therefore, the PCRA court 

properly denied this claim of ineffectiveness without an evidentiary hearing.

In Appellant’s third and final issue, he argues that his trial counsel was 

ineffective for failing to present character witnesses.

[W]hen raising a claim of ineffectiveness for the failure to 

call a potential witness, a petitioner satisfies the 

performance and prejudice requirements of the [Strickland

v. Washington, 466 U.S. 668 (1984),] test by establishing 

that: (1) the witness existed; (2) the witness was available 

to testify for the defense; (3) counsel knew of, or should 

have known of, the existence of the witness; (4) the witness

was willing to testify for the defense; and (5) the absence 

of the testimony of the witness was so prejudicial as to have 

denied the defendant a fair trial....

Commonwealth v. Sneed, 45 A.3d 1096, 1108–09 (Pa. 2012). 

“To demonstrate Strickland prejudice, a petitioner must show 

how the uncalled witnesses’ testimony would have been beneficial 

under the circumstances of the case.” Sneed, 45 A.3d at 1109. 

____________________________________________

5

Indeed, this same testimony was offered by Mario Ceballos, and yet the court 

ruled that no self-defense instruction was warranted.
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Counsel will not be found ineffective for failing to call a witness

“unless the petitioner can show that the witness’s testimony would 

have been helpful to the defense. A failure to call a witness is not 

per se ineffective assistance of counsel for such decision usually 

involves matters of trial strategy.” Id. (internal quotation marks 

and citations omitted).

Commonwealth v. Matias, 63 A.3d 807, 810–11 (Pa. Super. 2013).

In the present case, Appellant claims that he provided counsel with the 

names and contact information of five individuals who were willing to testify 

on his behalf, but counsel only called one character witness, Theresa Robles. 

Appellant acknowledges that Ms. Robles testified that he participated in a 

community program to stop violence, “he was ... a mentor for being a 

nonviolent person[,]” and he had a reputation in the community for 

peacefulness. Appellant’s Brief at 19 (quoting N.T. Trial at 415). However, 

Appellant avers that he was prejudiced by counsel’s failure to call more 

character witnesses because, in counsel’s opening statement, she had

promised the jury that multiple witnesses would be called to “testify about 

Appellant’s reputation in the community for being peaceful or nonviolent.” Id. 

at 18. Appellant maintains that counsel’s decision to call only one such 

witness “prevented [the jury] from believing that Appellant had others who 

would verify his character[,]” thus causing him prejudice. Id. at 20. 

Appellant’s argument is unconvincing. Appellant centers his argument 

that counsel ‘promised’ to call multiple character witnesses on the following 

portion of trial counsel’s opening statement:

[Defense Counsel:] You will hear evidence from witnesses who 

will tell you that [Appellant] enjoys a reputation in the community 

of Reading for being a peaceful or nonviolent person. People will 
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not come in here and tell you he is a trouble-maker, he is a fighter 

and ... one who starts up with other people. That’s not what you 

will hear. You will hear that he enjoys a reputation for being a 

peaceful and nonviolent person and [the court] will tell you that 

we as human beings tend to act in conformity with our character. 

If you’re a funny person[,] you act funny. If you’re a peaceful 

person[,] you tend to act peaceful. If you’re a dishonest person[,] 

you tend to act dishonestly. 

Id. at 18 (quoting N.T. Trial at 54-55; emphasis added).

From this passage, it is clear that counsel only once referred to multiple 

character witnesses. We disagree with Appellant that this single remark 

amounted to a ‘promise’ to the jury that counsel failed to keep by calling only 

one character witness to the stand. Instead, counsel stated to the jury that 

they would hear evidence of Appellant’s reputation for being peaceful and 

nonviolent, and counsel produced that evidence by calling Ms. Robles to the 

stand. Accordingly, we discern no prejudice caused to Appellant.6

____________________________________________

6 We also point out that, of the five individuals who Appellant names as 

potential character witnesses, see Appellant’s Brief at 19, only two submitted 

affidavits that referenced his reputation in the community for being peaceful 

or nonviolent. See Appellant’s Pro Se PCRA Petition, 3/6/14, at “Exhibit A” 

(affidavits of Lamberto Figueroa, Luis E. Figueroa-Villaseñor, and Natalie 

Palomaes) and “Exhibit C” (affidavits of Maria M. Mora-Zavala and Jesus 

Perez). Moreover, each of those two individuals, Lamberto Figueroa and Luis 

E. Figueroa-Villaseñor, presented only a one-sentence statement that 

Appellant has a “good” or “great” reputation in the community for being 

peaceful and nonviolent; neither man elaborated on that claim in any way. 

See id. at “Exhibit A” (affidavits of Figueroa and Figueroa-Villaseñor). In light 

of the character testimony offered by Ms. Robles, and the boilerplate 

statements in Figueroa’s and Figueroa-Villaseñor’s affidavits, Appellant has 

not demonstrated that the absence of their character testimony deprived him 

of a fair trial.
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In sum, none of Appellant’s three claims of ineffective assistance of trial 

counsel raises a genuine issue of material fact necessitating a hearing. 

Therefore, the PCRA court did not err in denying his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/27/2018