J. S04035/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

PEDRO LUIS GAVILAN-CRUZ, : No. 1117 MDA 2017

:

 Appellant :

Appeal from the PCRA Order, April 24, 2017,

in the Court of Common Pleas of Lancaster County

Criminal Division at No. CP-36-CR-0001911-2014

BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 20, 2018

Appellant, Pedro Luis Gavilan-Cruz, appeals from the April 24, 2017 

order of the Court of Common Pleas of Lancaster County denying appellant’s 

petition for relief filed pursuant to the Post-Conviction Relief Act1 (“PCRA”). 

After careful review, we affirm.

The PCRA court provided the following relevant facts and procedural 

history:

On March 6, 2014, [appellant] was arrested and 

charged with rape, involuntary deviate sexual 

intercourse, aggravated indecent assault, terroristic 

threats, unlawful restraint (two counts), simple 

assault (two counts), and sexual assault.[Footnote 1] 

These charges related to [appellant’s] sexual assault 

of his ex-girlfriend while he held her hostage, under 

the threat of death, in her home from March 2, 

2014, to March 3, 2014.

 

1 42 Pa.C.S.A. §§ 9541-9546.
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[Footnote 1] 18 Pa.C.S.A. § 3121(a)(1), 

18 Pa.C.S.A. § 3123(a)(1),18 Pa.C.S.A. 

§ 3125(a)(2), 18 Pa.C.S.A. § 2706(a)(1), 

18 Pa.C.S.A. § 2902(a)(1),(2), 

18 Pa.C.S.A. § 2701(a)(1),(3), and 

18 Pa.C.S.A. § 3124:1, respectively.

The case proceeded to a jury trial before [the 

Honorable David L. Ashworth] on December 15, 

2014, and concluded on December 18, 2014, with a 

verdict of guilty on all nine charges. The jury further 

found that [appellant] used a deadly weapon at the 

time of each offense. Following the verdict, 

sentencing was deferred pending a pre-sentence 

investigation.

On April 2, 2015, the [PCRA] Court imposed 

consecutive sentences of 8 to 16 years’ incarceration 

for the rape and IDSI charges, plus concurrent 

sentences of 5 to 10 years for the aggravated 

indecent assault, 1 to 2 years for the terroristic 

threats, 1 to 2 years for the unlawful restraint – risk 

of bodily injury, 1 to 2 years for the unlawful 

restraint – involuntary servitude, and 1 to 2 years for 

each of the simple assault charges. The charge of 

sexual assault merged with the rape count for 

purposes of sentencing. The aggregate sentence, 

therefore, was 16 to 32 years’ incarceration. The 

sentencing was enhanced due to [appellant’s] use of 

a deadly weapon during the commission of the 

offenses. [Appellant] was RRRI ineligible, but 

received credit for time served of 412 days. 

Restitution in the amount of $2,078.92 was imposed, 

as well as fees and costs. [Appellant] was advised at 

sentencing of his lifetime registration obligations 

pursuant to 42 Pa.C.S.A. § 9799.10. et seq., as a 

Tier III sexual offender.

[Appellant] filed no post-sentence motions. A timely 

notice of appeal to the Superior Court of 

Pennsylvania was filed on April 29, 

2015.[Footnote 2] On August 20, 2015, the 

Pennsylvania Superior Court dismissed the appeal for 
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failure of counsel to file a brief for [appellant.] (See

No. 758 WDA 2015.) [Appellant] had been 

represented at trial, sentencing, and on direct appeal 

by privately retained counsel, William D. Hobson, 

Esquire.

[Footnote 2] Pursuant to this Court’s 

directive, [appellant] filed a statement of 

matters complained of on appeal, in 

which [appellant] raised four issues: 

(1) whether the prosecutor violated 

Pa.R.E. 404 by failing to provide written 

notice to defense counsel of the 

Commonwealth’s intention to introduce 

[appellant]’s prior bad acts; (2) whether 

[appellant]’s right to testify was violated 

by the Commonwealth’s intended use of 

prior bad acts as rebuttal evidence; 

(3) whether the Commonwealth 

improperly withdrew the plea offer; and 

(4) whether the guilty pleas were 

properly entered in the two prior 

convictions so as to serve as prior bad 

acts in the instant case.

On July 14, 2016, [appellant], through newly 

retained private counsel, filed a PCRA petition 

claiming he was denied effective assistance of 

counsel when Attorney Hobson failed to perfect his 

direct appeal. The Commonwealth agreed that the 

petition was timely and that [appellant] was entitled 

to have his direct-appeal rights reinstated. 

Accordingly, the Commonwealth did not contest the 

PCRA [petition]. On July 20, 2016, [appellant] was 

granted PCRA relief, and leave to file an appeal 

nunc pro tunc to the Superior Court from his 

judgment of sentence.

A nunc pro tunc appeal to the Superior Court of 

Pennsylvania was filed on July 26, 2016.[Footnote 3] 

(See No. 1238 MDA 2016.) A three-judge panel of 

the Superior Court affirmed the judgment of 

sentence in an unpublished memorandum filed on 

December 5, 2016[Footnote 4] See 
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Commonwealth v. Gavilan-Cruz, 2016 WL 

7048829 (Pa.Super. 2016).

[Footnote 3] Pursuant to this Court’s 

directive, [appellant] furnished a concise 

statement of matters complained of on 

appeal which set forth two bases for the 

appeal: (1) “Attorney Hobson, prior to 

trial, failed to properly prepare appellant 

to testify during the trial”; and 

(2) ”Attorney Hobson gave appellant bad 

advice, resulting in appellant giving up 

his right to testify.”

[Footnote 4] [Appellant]’s claims of 

ineffectiveness were dismissed without 

prejudice to his right to seek relief under 

the PCRA, pursuant to Commonwealth 

v. Grant, 572 Pa. 48, 813 A.2d 726

(2002).

On December 13, 2016, an amended petition was 

filed by PCRA counsel which raised the following 

issues: (1) trial counsel failed to adequately prepare 

his client to testify at trial; (2) trial counsel failed to 

explain to [appellant] that [appellant’s] prior record 

would not be presented to the jury if his testimony 

were limited to the historical facts of the incident; 

and (3) trial counsel advised [appellant] he was 

more likely to be acquitted if he chose to remain 

silent. The Commonwealth filed a response to the 

amended petition on January 12, 2017, conceding 

the need for an evidentiary hearing on these claims. 

Accordingly, a hearing was held on February 27, 

2017, at which time the [PCRA] Court heard 

testimony from Defense Attorney Hobson and 

[appellant]. Briefs having been filed by the parties, 

this matter is now ripe for [consideration].

PCRA court opinion, 4/24/17 at 1-4 (citations omitted).

The PCRA court denied appellant’s petition on April 24, 2017. 

Appellant filed a timely notice of appeal to this court on May 19, 2017. The 
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PCRA court ordered appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b) and Appellant timely 

complied. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on 

July 13, 2017, in which it incorporated its April 24, 2017 opinion and order 

denying appellant’s PCRA petition.

Appellant raises the following issue for our review:

Did the PCRA court err when it denied [appellant’s] 

petition for post conviction relief when it found that 

trial counsel provided effective assistance when trial 

counsel failed to advise his client properly regarding 

his right to testify due to his misunderstanding of the 

trial court’s evidentiary ruling and misunderstanding 

of the fundamenals [sic] or [sic] evidence and trial 

counsel failed to prepare his client to testify at trial?

Appellant’s brief at 4 (capitalization omitted).

Appeals following the denial of PCRA relief are subject to the following 

standard of review:

Our standard of review from the grant or denial of 

post-conviction relief is limited to examining whether 

the PCRA 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). We will not disturb findings that are 

supported by the record. Commonwealth v. 

Yager, 685 A.2d 1000, 1003 (Pa.Super. 1996) (en 

banc).

Commonwealth v. Ousley, 21 A.3d 1238, 1241 (Pa.Super. 2011), appeal 

denied, 30 A.3d 487 (Pa. 2011).

To be entitled to relief on an ineffective assistance 

claim, a PCRA petition must establish: (1) the 

underlying claim has arguable merit; (2) no 
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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 that the 

result of the proceeding would have been different. 

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 

(Pa. 2011) (employing ineffective assistance of 

counsel test from Commonwealth v. Pierce, 527 

A.2d 973, 975-976 (Pa. 1987)[Footnote 5] Counsel 

is presumed to have rendered effective assistance. 

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 

2010). Additionally, counsel cannot be deemed 

ineffective for failing to raise a meritless claim. 

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 

2006). Finally, because a PCRA petitioner must 

establish all the Pierce prongs to be entitled to 

relief, we are not required to analyze the elements of 

an ineffective assistance claim in any specific order; 

thus, if a claim fails under any required element, we 

may dismiss the claim on that basis. Ali, 10 A.3d at 

291.

[Footnote 5]: Pierce reiterates the 

preexisting three-prong test for 

ineffective assistance of counsel in 

Pennsylvania and holds it to be 

consistent with the two-prong 

performance and prejudice test in 

Strickland v. Washington, 466 U.S. 

668 (1984). Pierce, 527 A.2d 976-977.

Commonwealth v. Trieber, 121 A.3d 435, 444-445 (Pa. 2015).

A criminal defendant’s decision whether to testify in his own defense or 

remain silent is a basic fundamental right grounded in both our national and 

Commonwealth’s Constitutions. See U.S. Const. amdt. 5; Pa. Const. Art. I, 

§ 9. Generally, a defendant cannot successfully claim ineffective assistance 

of counsel for failing to call him to testify after a defendant has voluntarily 

waived his right to testify in a colloquy, unless certain exceptions are 
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established. Commonwealth v. Rigg, 84 A.3d 1080, 1086 (Pa.Super. 

2014), citing Commonwealth v. Peay, 806 A.2d 22, 29 (Pa.Super. 2002), 

appeal denied, 813 A.2d 840 (Pa. 2002); Commonwealth v. Schultz, 

707 A.2d 513, 520 (Pa.Super. 1997).

In order to sustain a [PCRA] 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.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000), quoted by 

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013).

Here, appellant waived his right to testify on his own behalf. The 

PCRA court administered the following colloquy in open court:

THE COURT: All right. Mr. Gavilan-Cruz, it’s my 

understanding that you, after discussions with your 

attorney, have chosen not to testify; is that correct?

[APPELLANT]: Yes.

THE COURT: All right. Do you understand that you 

have both the right to testify and the right not to 

testify? Do you understand that?

[APPELLANT]: Yes.

THE COURT: And that you understand by choosing 

not to testify, the jury will be instructed that they 

may not in any way draw any negative inference or 

think that they should hold it against you for not 

testifying? Do you understand that?

[APPELLANT]: Yes.
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THE COURT: . . . . Do you understand that I will 

instruct the jury exactly that, and that they may not 

draw any negative inference against you for your 

decision to exercise your constitutional rights not to 

testify? Do you understand that?

[APPELLANT]: Yes.

THE COURT: Is this a decision that you have made 

of your own free will?

[APPELLANT]: Yes.

THE COURT: And you’ve discussed this with your 

attorney; correct?

[APPELLANT]: Yes.

THE COURT: Have any threats or promises or 

anything of any kind been made to you or against 

you to force you to make this decision today?

[APPELLANT]: No.

THE COURT: All right. Do you have any questions 

of me or of your attorney?

[APPELLANT]: No.

Notes of testimony, 12/17/14 at 500-501.

In Nieves, the defendant elected not to testify on his own behalf 

because his counsel was concerned about the defendant’s previous 

convictions, none of which were crimen falsi, being used for impeachment 

purposes. Nieves, 746 A.2d at 1103. The defendant’s counsel initially 

alluded to having concern that the defendant’s testimony may have opened 

a door to allow the Commonwealth to use evidence of the convictions for the 

purposes of impeachment; however, upon further examination by the PCRA 
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court, counsel testified that his concern of opening the door was not the 

primary reason that he advised the defendant not to testify. Id. at 1105.

Unlike in Nieves, appellant’s trial counsel testified that his primary 

concern in advising appellant not to testify was that appellant would open 

the door to allow the Commonwealth to use evidence of non-crimen falsi

convictions for the purpose of impeachment. See Pa.R.E. 404(a)(2)(A) (if a 

defendant offers evidence of a particular character trait, a prosecutor may 

then offer evidence to rebut). Specifically, Attorney Hobson testified that he 

was concerned about the jury’s hearing about two previous convictions: 

The jury doesn’t know about the prior attack of a 

prior assault with the other -- with the other woman. 

But if [appellant] take[s] the stand and say[s], you 

know, [victim], I love you; [victim], I’d never hurt 

you; [victim], I’d never harm you, it’s coming in. 

And I said to [appellant], it is your decision, not 

mine, but if you say those words and that comes 

out, I believe you will get convicted.

. . . .

All I could do, I had to lay out to him that if he --

again, if he said -- if his testimony went in certain 

directions, and I couldn’t see how he could defend 

himself and have that testimony not go in those 

directions.

Notes of testimony, 2/27/17 at 42-43.

In its opinion, the PCRA court stated that it found Attorney Hobson’s 

testimony to be credible. Based on Attorney Hobson’s testimony, we find 

that he did not interfere with appellant’s right to testify on his own behalf, as 
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Attorney Hobson emphasized to appellant that it was appellant’s decision. 

We further find that Attorney Hobson’s advising appellant not to testify was 

based on reasonable strategic concerns about preventing the jury from 

learning of appellant’s previous convictions. (See notes of testimony, 

2/27/17 at 42-43.) We therefore hold that the PCRA court’s denial of 

appellant’s PCRA petition was supported by the evidence of record and is 

free of legal error.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/20/18