J-S36019- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.
JAIME OTERO Appellant No. 2771 EDA 2013

Appeal from the PCRA Order September 24 , 2013 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP

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- CR -0000290-2008
BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J. * MEMORANDUM BY JENKINS, J.: FILED AUGUST 06, 2014 Jaime Otero (“Appellant”) appeals from the order dismi ssing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 Specifically, Appellant argues that his trial counsel was ineffective for failing
to cross- examine the victim on whether she telephoned Appellan t’s parole officer before calling the police following the assault for which Appellant was convicted. After careful review, we affirm. The trial court aptly set forth the facts and procedura l history of this
case as follows:

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* Former Justice specially assigned to the Superior Court

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1 42 Pa.C.S. §§ 9541- 9546.J-S36019- 14

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On August 22, 2008, [Appellant] was convicted by a ju ry of Simple Assault, Terroristic Threats, Possession of a Cont rolled Substance, and Possession of Drug Paraphernalia. The cha rges stemmed from an incident which occurred between [Appella nt] and Tanya Theobold (“Complainant”) at an apartment i n Springfield Township, where [Appellant] had been tem porarily living with Complainant and her young son. [Appella nt] and Complainant had an argument in the morning on Novem ber 29, 2007, during which [Appellant] used a utility knife in a threatening manner towards Complainant, threatening to cut both her and her son. Complainant called 911 and rep orted [Appellant’s] name, described his threatening behavior and advised the 911 dispatcher that he could be found in he r home. When law enforcement arrived at Complainant’s home, [Appellant] answered the door and identified himself as Jaime Otero. Complainant subsequently gave police written co nsent to search her apartment and [Appellant] was placed in hand cuffs for the safety of the officers. A search of the apartment yielded a blue utility kni fe; a set of keys; four men’s rings; four wrapped condoms; $180 i n U.S. currency; two cell phones; a chilled and open can of beer ; and a black 35mm plastic film container. [Appellant] confirm ed all of the items were his with the exception of the film can ister. Police opened the plastic film canister and discovered sixteen sm all individually wrapped packages which appeared to contai n a co ntrolled substance. After laboratory examination, it was determined that the substance in the packages was .70 gra ms of heroin. On August 27, 2008, following his trial, [Appellant] was sentenced to 22-72 months incarceration by Judge Heckler. On September 4, 2008, trial counsel filed a Motion for P ostSentence Relief on behalf of [Appellant], which was de nied by this [c]ourt. On September 5, 2008, [Appellant] file d a pro se appeal to the Superior Court and Motion for New Cou nsel, without consulting trial counsel and without providing notice to them. On October 7, 2008, a Petition for the Appointment of Private Counsel for Appeal was filed by the Public Def enders’ Office. On October 16, 2008, this [c]ourt denied the P ostSentence Motion as well as the Petition for Appointme nt of Private Counsel. On May 4, 2009, [Appellant] filed a Motion for Withdrawal of Appointed Counsel and to Proceed Pro Se and theJ-S36019- 14

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Superior Court ordered this [c]ourt to conduct a hearin g on the matter. A hearing was held wherein this [c]ourt foun d [Appellant’s] waiver of counsel to be knowing and volu ntary and [Appellant] was permitted to proceed pro se
. On June 30, 2009, [Appellant] filed a Motion for S etting Bail Pending Appeal with the Superior Court and subse quently, the Superior Court directed the Motion to be decided by this [c]ourt. A hearing was held and this [c]ourt denied [ Appellant’s] Motion for Bail in an Order dated September 15, 200 9. [Appellant] appealed the denial of bail and the Sup erior Court ultimately affirmed this [c]ourt. On December 16, 201 0, our Supreme Court denied [Appellant’s] Petition for All owance of Appeal. On November 14, 2011, [Appellant] filed a pro se PCRA petition. On December 14, 2011, this [c]ourt appointe d Attorney Stuart Wilder to represent [Appellant]. On August 1 3, 2012, a hearing was conducted via videoconference on [Appellant’ s] PCRA petition. In an order dated November 8, 2012, this [c]ourt denied [Appellant] relief under the PCRA. Petition er did not appeal. On August 27, 2013, [Appellant] filed his Second PCR A Petition. On September 26, 2013, this [c]ourt enter ed an Order permitting [Appellant] to file an appeal of the den ial of his first PCRA Petition nunc pro tunc . On September 30, 2013, [Appellant] filed this Notice of Appeal. On October 1 7, 2013, [Appellant] filed a Concise Statement of Matters Compl ained of on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Trial Court Pa.R.A.P. 1925(a) Opinion, January 2, 2 014 (“1925(a) Opinion”), at 1-4 (internal record citations and footnotes omitt ed). Appellant raises the following question for our revie w: Did counsel, who failed to present impeachment evidence by questioning Complainant about her decision to call Appe llant’s parole officer before she called the police, provide in effective assistance in violation of the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Pen nsylvania Constitution?J-S36019- 14

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Appellant’s Brief at 4. In reviewing an order denying PCRA relief, our wel l-settled standard of
review is “to determine whether the determination of the PCRA court is supported by the evidence of record and is free of lega l error. The PCRA court’s findings will not be disturbed u nless there is no support for the findings in the certified record.” Commonwealth v. Barndt , 74 A.3d 185,
191 -192 (Pa.Super.2013) (internal quotations and citat ions omitted).
This Court follows the Pierce 2 test adopted by our Supreme Court to
review PCRA claims of ineffective assistance of counsel: When a petitioner alleges trial counsel’s ineffectivenes s in a PCRA petition, he must prove by a preponderance of th e evidence that his conviction or sentence resulted from ine ffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining p rocess that no reliable adjudication of guilt or innocence cou ld have taken place. We have interpreted this provision in the PCRA to mean that the petitioner must show: (1) that his claim of counsel’s ineffectiveness has merit; (2) that counsel had no reasonable strategic basis for his action or inaction; and (3) that the error of counsel prejudiced the petitioner-i.e., that there is a reasonable probability that, but for the error of cou nsel, the outcome of the proceeding would have been different. We presume that counsel is effective, and it is the burden o f Appellant to show otherwise.

Commonwealth v. duPont , 860 A.2d 525, 531 (Pa.Super.2004) (internal citations and quotations omitted). The petitioner bea rs the burden of proving all three prongs of this test. Commonwealth v. Meadows , 787

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2 Commonwealth v. Pierce , 527 A.2d 973 (Pa.1987).J-S36019- 14

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A.2d 312, 319- 320 (Pa.2001). “If an appellant fails to prove by a preponderance of the evidence any of the Pierce prongs, the Court need not address the remaining prongs of the test.” Commonwealth v. Fitzgerald , 979 A.2d 908, 911 (Pa.2010) (citation omitted). “Matters concerning the examination and cross -examination of
witnesses are matt ers clearly within the province of trial counsel.”
Commonwealth v. Smith , 17 A.3d 873, 912 (Pa.2011). “Generally, where matters of strategy and tactics are concerned, counsel’s assi stance is deemed constitutionally effective if he chose a particula r course that had some reasonable basis designed to effectuate his client’s i nterests.”
Commonwealth v. Colavita , 993 A.2d 874, 887 (Pa.2010) (citation omitted). Otherwise stated, “trial counsel will not be deemed inef fective
where he or she has a reasonable ba sis for his or her actions.” Commonwealth v. Spotz , 896 A.2d 1191, 1235 (Pa.2006) . “ Moreover, the mere fact that this trial strategy ultimately proved unsuccessful does not
render it unreasonable.” Id. “If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ce ases and
counsel’s assistance is deemed effective.” Commonwealth v. Paolello , 665 A.2d 439, 454 (Pa.1995). Appellant argues that trial counsel provided ineffecti ve assistance by failing to cross-examine the complainant about whether she called Appellant’s parole officer before calling the police fo llowing the incident forJ-S36019- 14

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which Appellant was convicted. See Appellant’s Brief, pp. 11 -14. This claim
lacks merit. At the PCRA hearing, trial counsel explained his tactica l decision to avoid revealing Appellant’s state parolee status to t he jury as follows:

There was an issue that Mr. Otero was currently on state probation and parole. Although Mr. Otero says DUI is not a big offense, I look at DUI differently. Most people don’t get robbed, most people don’t get raped, most people don’t get bu rglarized. But most people drive on the road and see[] some idiot who run [at] them and cuts them off. Jurors don’t like people with DUI’s. And I thought why should I l et them know he’s got a bigger criminal record. All we had to do was admit to the cr imen falsi, which is lying to the police officer. So how I preferred to do it is I’ll bring it out on direct. Mr. Otero, you did this back in 2003, right? That was a long time ago. Yes. You pled guilty because you were guilty, r ight? Yeah. You paid the full price for that. You’ll insulate it, you isolate it and you move on. I don’t want to call into attention that he’s currently on p arole.

. . . So whether [the complainant] called state parole firs t before she called the state police, I didn’t see it as a real big issue. I’m thinking, well, could that build her up no w? Could the jury think, gee, look, she was just trying to call the PO not to get him in real trouble with the police. And you enhance her credibility. Now, all that’s going through my mind as I’m making that decision not to put into fact [sic] he was on state parol e. So I saw no benefit by him admitting he’d under supervision . Then if he even open s up the door for supervision, I don’t know if it opens up what he’s on supervision for. So they could be even thinking there’s a bigger issue out there. So that’s w hy I left it alone.

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- 7 - But how I felt, I don’t want [the jury] to know he’ s on state p arole. State parole is an indication that it’s not a county sentence. So they’re going to think a bigger offense, and I don’t want the jury thinking that. Because this is sort of a, he’s saying this, she’s saying this, and I don’t want to bolster he r cr edibility one iota after we lost bringing [another witness] in t o talk about her bias, prejudice and motive for making the story u p. N.T. 8/13/2012, pp. 37- 39. The PCRA court summarized this testimony as follows: [Trial counsel] testified at [Appellant’s] PCRA hearing. He stated that he made a strategic decision not to question Compla inant on this issue because he did not want the jury to be pr ejudiced by the knowledge that [Appellant] was on parole at the time of the incident. [Trial counsel] took a number of other steps prior to and during the trial to ensure the jury would not be aware of [Appellant’s] parole status.
1925(a) Opinion, p. 5; see also N.T. 8/13/2012, pp. 37-39. The PCRA court
then concluded: This is a legitimate trial tactic with a reasonable basis and therefore cannot be grounds to render counsel ineffectiv e. Further, given the likelihood this information would have prejudiced the jury, [Appellant] has no basis for argu ing the outcome of his case would have been different.

Id. at 5- 6.
We agree with the PCRA court’s conclusions, which are supporte d by the record and free of legal error. Accordingly, we a ffirm.
Order affirmed.J-S36019- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/6/2014