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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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-09-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 dismissing 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 Appellant’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 procedural history of this 

case as follows: 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 

1

 42 Pa.C.S. §§ 9541-9546.
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 On August 22, 2008, [Appellant] was convicted by a jury 

of Simple Assault, Terroristic Threats, Possession of a Controlled 

Substance, and Possession of Drug Paraphernalia. The charges 

stemmed from an incident which occurred between [Appellant] 

and Tanya Theobold (“Complainant”) at an apartment in 

Springfield Township, where [Appellant] had been temporarily 

living with Complainant and her young son. [Appellant] and 

Complainant had an argument in the morning on November 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 reported 

[Appellant’s] name, described his threatening behavior and 

advised the 911 dispatcher that he could be found in her home. 

When law enforcement arrived at Complainant’s home, 

[Appellant] answered the door and identified himself as Jaime 

Otero. Complainant subsequently gave police written consent to 

search her apartment and [Appellant] was placed in handcuffs 

for the safety of the officers. 

 A search of the apartment yielded a blue utility knife; a set 

of keys; four men’s rings; four wrapped condoms; $180 in U.S. 

currency; two cell phones; a chilled and open can of beer; and a 

black 35mm plastic film container. [Appellant] confirmed all of 

the items were his with the exception of the film canister. Police 

opened the plastic film canister and discovered sixteen small 

individually wrapped packages which appeared to contain a 

controlled substance. After laboratory examination, it was 

determined that the substance in the packages was .70 grams 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 PostSentence Relief on behalf of [Appellant], which was denied by 

this [c]ourt. On September 5, 2008, [Appellant] filed a pro se

appeal to the Superior Court and Motion for New Counsel, 

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 Defenders’ 

Office. On October 16, 2008, this [c]ourt denied the PostSentence Motion as well as the Petition for Appointment of 

Private Counsel. On May 4, 2009, [Appellant] filed a Motion for 

Withdrawal of Appointed Counsel and to Proceed Pro Se and the 
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Superior Court ordered this [c]ourt to conduct a hearing on the 

matter. A hearing was held wherein this [c]ourt found 

[Appellant’s] waiver of counsel to be knowing and voluntary and 

[Appellant] was permitted to proceed pro se. 

 On June 30, 2009, [Appellant] filed a Motion for Setting 

Bail Pending Appeal with the Superior Court and subsequently, 

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, 2009. 

[Appellant] appealed the denial of bail and the Superior Court 

ultimately affirmed this [c]ourt. On December 16, 2010, our 

Supreme Court denied [Appellant’s] Petition for Allowance of 

Appeal. 

 On November 14, 2011, [Appellant] filed a pro se PCRA 

petition. On December 14, 2011, this [c]ourt appointed Attorney 

Stuart Wilder to represent [Appellant]. On August 13, 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. Petitioner did not 

appeal. 

 On August 27, 2013, [Appellant] filed his Second PCRA 

Petition. On September 26, 2013, this [c]ourt entered an Order 

permitting [Appellant] to file an appeal of the denial of his first 

PCRA Petition nunc pro tunc. On September 30, 2013, 

[Appellant] filed this Notice of Appeal. On October 17, 2013, 

[Appellant] filed a Concise Statement of Matters Complained of 

on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure 

1925(b). 

Trial Court Pa.R.A.P. 1925(a) Opinion, January 2, 2014 (“1925(a) Opinion”), 

at 1-4 (internal record citations and footnotes omitted). 

 Appellant raises the following question for our review: 

Did counsel, who failed to present impeachment evidence by 

questioning Complainant about her decision to call Appellant’s 

parole officer before she called the police, provide ineffective 

assistance in violation of the Sixth Amendment to the United 

States Constitution and Article 1, Section 9 of the Pennsylvania 

Constitution? 
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Appellant’s Brief at 4.

 In reviewing an order denying PCRA relief, our well-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 legal error. The PCRA 

court’s findings will not be disturbed unless 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 citations omitted). 

This Court follows the Pierce2

 test adopted by our Supreme Court to 

review PCRA claims of ineffective assistance of counsel: 

When a petitioner alleges trial counsel’s ineffectiveness in a 

PCRA petition, he must prove by a preponderance of the 

evidence that his conviction or sentence resulted from ineffective 

assistance of counsel which, in the circumstances of the 

particular case, so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could 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 counsel, the 

outcome of the proceeding would have been different. We 

presume that counsel is effective, and it is the burden of 

Appellant to show otherwise. 

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal 

citations and quotations omitted). The petitioner bears the burden of 

proving all three prongs of this test. Commonwealth v. Meadows, 787 

____________________________________________ 

2 Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987). 
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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 matters 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 assistance is 

deemed constitutionally effective if he chose a particular course that had 

some reasonable basis designed to effectuate his client’s interests.” 

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa.2010) (citation 

omitted). Otherwise stated, “trial counsel will not be deemed ineffective 

where he or she has a reasonable basis 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 ceases and 

counsel’s assistance is deemed effective.” Commonwealth v. Paolello, 

665 A.2d 439, 454 (Pa.1995). 

 Appellant argues that trial counsel provided ineffective assistance by 

failing to cross-examine the complainant about whether she called 

Appellant’s parole officer before calling the police following the incident for 
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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 tactical decision to 

avoid revealing Appellant’s state parolee status to the 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 burglarized. 

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 let them know he’s got a bigger 

criminal record. All we had to do was admit to the crimen 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, right? 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 parole. 

. . . 

So whether [the complainant] called state parole first 

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 now? 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 parole. So I 

saw no benefit by him admitting he’d under supervision. Then if 

he even opens 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 why I left it 

alone. 

. . . 
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But how I felt, I don’t want [the jury] to know he’s on 

state parole. 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 her credibility 

one iota after we lost bringing [another witness] in to talk about 

her bias, prejudice and motive for making the story up. 

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 Complainant 

on this issue because he did not want the jury to be prejudiced 

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 ineffective. 

Further, given the likelihood this information would have 

prejudiced the jury, [Appellant] has no basis for arguing the 

outcome of his case would have been different. 

Id. at 5-6.

We agree with the PCRA court’s conclusions, which are supported by 

the record and free of legal error. Accordingly, we affirm. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/6/2014