J-S41010-15

*Retired Senior Judge 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellee

v.

LUIS MANUEL VELEZ-MERCADO,

Appellant No. 1515 MDA 2014

Appeal from the PCRA Order entered August 14, 2014,

in the Court of Common Pleas of Lancaster County,

Criminal Division, at No(s): CP-36-CR-0000910-2010

BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JUNE 26, 2015

Luis Manuel Velez-Mercado (“Appellant”) appeals from the order 

denying his petition for relief under the Post-Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. sections 9541-46. We affirm.

The PCRA court summarized the pertinent facts as follows:

On the early morning of December 31, 2009, at 

approximately 2:00 a.m., a red Ford Ranger pickup truck 

was idling across the street from Vicky’s Bar, located at 

701 South Prince Street in the City of Lancaster. Two 

employees were standing on the front porch of the bar 

preparing to close the bar for the night: Jonathan Miller, 

the bar’s manager, and Victor Ortiz, the bar’s 

bouncer/doorman. When the driver’s side window of the 

truck came down, both employees immediately recognized 

the driver as a former employee by the nickname of 

“Flaco.” [Miller identified Appellant at trial as “Flaco.”] 

[Appellant] had been terminated from his employment as 

a DJ for the bar approximately three to four weeks earlier. 
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A week or two after he lost his job, [Appellant] had been in 

Vicky’s Bar and threatened a bouncer. He was warned by 

Miller not to come back to the bar. Nonetheless, 

[Appellant] tried several times to enter the bar and was 

refused service, which made him “very angry.”

While sitting in the truck across the street, [Appellant] 

brandished a small black handgun and fired “about five or 

six shots” from the driver’s side window towards the bar 

and the area where Miller and Ortiz were standing. Miller 

watched the truck take off and attempted to read the 

[license] plate. He believed the first three letters to be 

“YXX” and gave the 911 operator a description of the 

vehicle, as well as the partial license plate when he called 

to report the shooting.

[Appellant] went around the block and then returned a 

second time. This time both windows in the pickup truck 

were down and Ortiz and Miller were able to see a 

passenger in the truck. The truck drove by Vicky’s Bar 

slowly but no further shots were fired. After this second 

drive-by, Amarillis Perez, Ortiz’s girlfriend, arrived at the 

bar to pick up Ortiz, and Ortiz entered her vehicle which 

was stopped on the right-hand side of the street, opposite 

the bar. 

The pickup truck then returned to Vicky’s bar a third 

time. This time, the passenger, whom Miller and Ortiz 

recognized as “Alex,” a friend of [Appellant’s] who often 

patronized the bar, had climbed out of the truck and was 

sitting on the windowsill of the passenger’s side door 

facing the bar. Alex then brandished a black handgun and 

fired “[p]robably five or six” shots over the roof of the 

truck towards the porch where Miller was still standing.

During this whole episode, Miller was on the telephone 

with the 911 dispatcher. Within 30 to 60 seconds of the 

third drive-by, police arrived on the scene. Having 

received a description of the vehicle and a partial plate, 

Officers J. David Williams and Jessica Higgins with the 

Lancaster City Bureau of Police were able to identify the 

suspect vehicle in the area of Queens and Conestoga 

Streets, just blocks from Vicky’s Bar. Despite activated 

sirens and overhead flashers, the suspect vehicle did not 

stop and the police pursued the vehicle for several blocks 
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through the City. Eventually, the suspect vehicle did stop 

on South Queen Street near Howard Avenue and the two 

individuals were apprehended. The suspect vehicle was a 

maroon 1993 Ford Ranger truck, bearing Pennsylvania 

plate “YXX 1049.” The two individuals inside the truck 

were identified as Francis Alexcis Cruz-Rivera and

[Appellant].

Officer Justin Waynick, of the Lancaster City Bureau of 

Police, received the dispatch from county radio advising 

that a former employee of Vicky’s Bar had driven by and 

fired shots at the bar. He was the initial responding officer 

at the scene and took a statement from Jonathan Miller. 

Miller confirmed for the officer the information given to the 

911 dispatcher regarding the color, make and model of the 

pickup truck, as well as the names of the individuals 

involved in the shooting. Officer Waynick transported 

Miller to the area where the [traffic] stop occurred. There, 

he positively identified the vehicle and the driver and the 

passenger as the two who drove by Vicky’s bar and fired 

the gunshots at him and Ortiz while they stood on the 

bar’s porch.

After confiscating the vehicle driven by [Appellant], 

Officer Williams observed, in plain view on the passenger’s 

seat, a round of ammunition. Officer Williams later 

“noticed what appeared to be damage from a bullet to the 

rain guard” over the driver’s side window.

Pursuant to a search warrant, Detective James V. Fatta 

with the Lancaster City Bureau of Police conducted a 

search of the Ford pickup truck. He observed what 

appeared to him to be a bullet hole in the driver’s side 

door rain guard. The damage indicated that the bullet had 

been fired from inside the vehicle. An interior search of 

the vehicle revealed a .38 caliber bullet on the passenger 

seat. This bullet is of the type used in a revolver and not a 

semiautomatic handgun. Spent casings are not discharged 

from a revolver as they are with a semiautomatic, which 

explained why no shell casings were found at the scene of 

the shooting. 

As part of his investigation, Detective Fatta reviewed 

the video footage from the Lancaster Safety Coalition 

video camera mounted at the intersection of Prince and 
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Seymour Streets, which is diagonal from Vicky’s Bar. The 

footage showed a red Ford Ranger pickup truck at the 

intersection at 2:07 a.m., 2:08 a.m., and 2:09 a.m.

PCRA Court Opinion, 8/14/14, at 13-17 (citations and footnote omitted).

At the conclusion of trial on December 2, 2010, a jury convicted 

Appellant of two counts each of aggravated assault, recklessly endangering 

another person, and criminal conspiracy. On February 18, 2011, the trial

court imposed an aggregate sentence of six to twelve years of 

imprisonment. The trial court denied Appellant’s timely-filed post-sentence 

motion on April 15, 2011. Appellant filed a timely pro se appeal to this 

Court. On September 16, 2011, we entered an order directing the trial court 

to conduct a Grazier1 hearing regarding Appellant’s request to proceed pro 

se. Following a hearing on October 5, 2011, the trial court entered an order 

determining that Appellant did not wish to waive his right to counsel. 

Therefore, previously appointed counsel pursued Appellant’s appeal.

In the interim, on September 6, 2011, Appellant filed a pro se PCRA 

petition, which the PCRA court held in abeyance pending resolution of 

Appellant’s appeal to this Court. In an unpublished memorandum filed on 

May 23, 2012, we concluded that the trial court improperly sentenced 

Appellant and therefore vacated one concurrent six-to-twelve year term of 

imprisonment imposed on one conspiracy count. See Commonwealth v. 

____________________________________________

1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Velez-Mercado, 50 A.3d 249 (Pa. Super. 2012). In all other respects, we 

affirmed Appellant’s judgment of sentence. Id. Although Appellant initially 

filed a petition for allowance of appeal to our Supreme Court, he 

subsequently discontinued it on September 15, 2012, in favor of pursuing 

his previously filed PCRA petition.

Following the grant of multiple continuances at the request of 

Appellant’s privately-retained counsel, the PCRA court held an evidentiary 

hearing on September 18, 2013, and again on May 30, 2014. By Order 

entered August 14, 2014, the PCRA court denied Appellant’s PCRA petition. 

This timely appeal followed. Both Appellant and the PCRA court have 

complied with Pa.R.A.P. 1925.

Appellant raises the following issue:

I. Whether trial counsel was ineffective by failing to 

object to opinion testimony, equivalent to expert 

testimony, by law enforcement officers that damage to a 

rain guard was caused by the firing of a bullet from inside 

the vehicle Appellant was driving.

Appellant’s Brief at 4.

In reviewing the propriety of an order granting or denying PCRA relief, 

an appellate court is limited to ascertaining whether the record supports the 

determination of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great 

deference to the findings of the PCRA court, “but its legal determinations are 

subject to our plenary review.” Id. Moreover, to be entitled to relief under 
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the PCRA, the petitioner must plead and prove by a preponderance of the 

evidence that the conviction or sentence arose from one or more of the 

errors enumerated in section 9543(a)(2) of the PCRA. One such error 

involves the ineffectiveness of counsel.

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence 

that counsel's ineffectiveness so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place. 

Johnson, 966 A.2d at 532. “Generally, counsel’s performance is presumed 

to be constitutionally adequate, and counsel will only be deemed ineffective 

upon a sufficient showing by the petitioner.” Id. This requires the petitioner 

to demonstrate that: (1) the underlying claim is of arguable merit; (2) 

counsel had no reasonable strategic basis for his or her action or inaction; 

and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533. 

A finding of “prejudice” requires the petitioner to show “that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. Counsel cannot be 

deemed ineffective for failing to pursue a meritless claim. Commonwealth 

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

Appellant’s claim of ineffectiveness involves the testimony presented 

by Officer Williams and Detective Fatta regarding their observation of 

damage to the rain guard of the Ford pickup truck. According to Appellant:
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Testimony relating to the damage caused by a bullet fell 

outside the scope of Pennsylvania Rule of Evidence 701, 

Opinion Testimony by Lay Witnesses, and would require 

expert testimony under Rule 702 of the Pennsylvania Rules 

of Evidence, as testimony regarding ballistics is a subject 

matter relating to a science or occupation beyond that 

possessed by a lay person [sic]. Trial counsel had no 

reasonable basis for failing to object to the inadmissible 

opinion testimony and Appellant was prejudiced by its 

admission.

Appellant’s Brief at 13.

The PCRA court concluded that Appellant’s claim of trial counsel’s 

ineffectiveness lacked merit, and that Appellant could not establish the 

requisite prejudice. It explained:

At trial, Officer Williams testified that after transporting 

the truck used in the drive-by shootings to the police 

station to be searched, he “noticed what appeared to be

damage from a bullet to the rain guard” on the vehicle. He 

noted that he believed the damage to the rain guard might 

have been caused “possibly by a bullet or a fragment of 

some kind” because “the damage . . . had . . . almost a 

circular shape to it, and the cracks . . . expanded out.” 

Officer Williams explained that he did not do any further 

examination of the truck but rather informed the officers 

who would be searching the vehicle of the observed 

damage to the rain guard. [Appellant] claims trial counsel 

was ineffective for failing to object to Officer Williams’ 

“expert opinion.” [Trial counsel], however, did not 

concede that such testimony was, in fact, expert evidence. 

This Court did not qualify Officer Williams under Pa.R.E. 

702 as an expert witness in the field of ballistics. 

Consequently, the admissibility of his opinion testimony 

was governed by Rule 701. Pursuant to Rule 701, a lay 

witness may offer “testimony in the form of opinions or 

inferences,” provided that the lay witness’ opinion or 

inference testimony (1) rests on the perception of the 

witness, (2) helps establish “a clear understanding of the 

witness’ testimony or the determination of a fact in issue,” 
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and (3) is “not based in scientific, technical, or other 

specialized knowledge within the scope of Rule 702.” 

Pa.R.E. 701. See Commonwealth v. Blessitt, 852 A.2d 

1215, 1218 (Pa. Super. 2004); Commonwealth v.

Spencer, 432 Pa. Super. 631, 638-39, 639 A.2d 820, 824 

(1994). The admission of opinion testimony is within the 

trial court’s discretion. See Lewis v. Mellor, 259 Pa. 

Super. 509, 393 A.2d 941 (1978) (discussing court’s 

discretion to admit lay opinion).

In this case, there was no abuse of discretion in the 

admission under Rule 701 of this officer’s lay opinion 

testimony concerning the potential appearance of a bullet 

hole on the rain guard of a vehicle he observed. Officer 

Williams’ testimony was limited to an expression of his lay 

opinion which (1) was based solely on his visual 

observations of the physical evidence, (2) had relevance 

toward a material fact, the shootings, and (3) did not 

demand “scientific, technical or other specialized 

knowledge.” He performed no examination of the rain 

guard but rather simply informed those who would be 

examining the evidence of his limited observations. On 

this basis, the testimony was properly admissible and trial 

counsel’s failure to object did not constitute ineffective 

assistance of counsel.

Pursuant to a search warrant, Detective Fatta 

conducted the actual search of the pickup truck. He 

observed a shattered section of the driver’s door rain 

guard which “appeared as though . . . it was shot” with a 

“bullet or projectile.” Detective Fatta testified that the 

damage indicated that the bullet or projectile had been 

fired from inside the truck.

***

The record here establishes that the Commonwealth did 

not proffer Detective Fatta as an expert as he was not 

identified as such, nor was he qualified as an expert 

witness through the appropriate voir dire. Apparently, 

[trial counsel] and counsel for the co-defendant 

understood that Detective Fatta was not being presented 

as an expert witness, as well. The mere fact that a 

witness is a law enforcement officer does not automatically 

transform his testimony into expert testimony. See 
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Prince v. State, 216 Md. App. 178, 201, 85 A.3d 334, 

348 (2014).

[Appellant’s] argument that Detective Fatta’s testimony 

could not be lay opinion evidence because “a 

determination that the rain guard was damaged by a bullet 

fired from within the car required at least expertise in 

ballistics,” is based upon a faulty premise. It was 

unnecessary for Detective Fatta to be qualified as an 

expert in order to explain the presence of the bullet hole 

and the direction of its entrance and exit. See, for 

example, People v. Caldwell, 4 P.3d 663, 668 (Colo. 

App. 2001) (police officer who does nothing more than 

observe the appearance and location of two bullet holes, 

and the paths of the bullets by placing trajectory rods (in 

the same manner as any layman could) need not qualify as 

an expert to describe that process); Prince v. State, 216 

Md. App. at 202-03, 85 A[.]3d at 348-49 (police officer’s 

testimony about suspected bullet holes in victim’s car and 

bullet trajectory within scope of permissible lay 

testimony); People v. Oliver, 170 Mich. App. 38, 49-51, 

427 [N.W.2d] 898 (1988), modified in part on other 

grounds[,] 433 Mich. 862 (1989) (finding no abuse of 

discretion in the admission under MRE 701 of two police 

officers’ lay opinion testimony concerning the potential 

appearance of bullet holes on a car they examined). 

Anyone who saw the hole in the rain guard and knew the 

circumstances of the drive-by shootings could have given 

such an opinion. In fact, the jurors in this case viewed the 

actual rain guard with the hole and were able to come to 

their own conclusions. It simply did not require a scientific 

basis to say that the opening in the rain guard appeared to 

be a bullet hole and that the bullet appeared to have 

entered one way and exited another because of the 

“outward cone shape” of the plastic. The witness who 

merely draws conclusions from everyday reasoning 

processes is not testifying as an expert. Pa.R.E. 701.

Detective Fatta testified that he was familiar with 

firearms, handguns and bullets from his experience as a 

police [officer], as a serviceman, and as a hunter. From 

this experience, he was able to identify a “bullet hole 

marking” on the rain guard. He conducted no 

experiments, made no attempts at reconstruction, and was 

not conveying information that required a specialized or 
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scientific knowledge to understand. He merely testified as 

to his perception of the bullet hole that he personally 

observed in the rain guard. He inspected the vehicle while 

performing his duties, and testified as to the appearance of 

the bullet hole, and as to the direction he believed as a 

layman, the bullet traveled. His testimony was intended to 

assist the jury in determining the bullet hole’s significance. 

Thus, this lay opinion testimony was properly admissible. 

Simply because the evidence was “powerful” and 

“corroborating” of Mr. Miller’s testimony does not establish 

that trial counsel should have objected to it as [improper] 

expert opinion testimony or that the Court would have 

sustained the objection.

Further, there also was no prejudice here to 

[Appellant]. The fact the PCRA counsel could not obtain an 

expert report that disputed the lay opinions of Detective 

Fatta with respect to the rain guard proves that there was 

no prejudice to [Appellant’s] case by the admission of this 

evidence.

PCRA Court Opinion, 8/14/14, at 29-34 (citations to record and footnotes 

omitted).

Our review of the record supports the PCRA court’s well-reasoned 

discussion and conclusions. See, e.g., Commonwealth v. Buterbaugh, 

91 A.3d 1247, 1262 (Pa. Super. 2014) (affirming admissibility of lay witness 

opinion testimony that was based on witness’s observations and 

perceptions). As noted by the PCRA court, although Appellant was afforded 

the opportunity to inspect the rain guard and retain a ballistic expert, he 

decided to present no pertinent testimony at the evidentiary hearing. See 

PCRA Court Opinion, 8/14/14, at at 10. In rejecting Appellant’s claim that 

trial counsel was ineffective for failing to obtain the services of a ballistics 

expert – an issue not raised on appeal – the PCRA court noted that trial 
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counsel did not retain a ballistics expert because “it was obvious to any nonexpert that the damage to the rain guard was caused by a bullet from inside 

the truck, and an expert report would have served only to substantiate the 

Commonwealth’s position.” Id. at 27. 

Appellant’s claims to the contrary are unavailing. His attempt to 

factually distinguish the decisions from our sister states is unpersuasive. 

See Appellant’s Brief at 16-18. Moreover, our review of the record refutes 

Appellant’s claim of prejudice: “Here, but for the admission of the opinion 

testimony by the law enforcement officers as to the cause of a hole in the 

rain guard, there would be virtually no other corroborative evidence of the 

Commonwealth’s only complaining witness in this case, Mr. Miller.” 

Appellant’s Brief at 19. As explained by the Commonwealth, in making this 

argument, Appellant ignores the ample evidence corroborating Miller’s 

version of the incident, including: 1) Appellant and his co-defendant were 

found in a vehicle that matched Miller’s description within minutes of the 

shooting and near the scene; 2) The vehicle’s license plate matched the 

partial identification Miller gave to the 911 dispatcher; 3) the suspected 

vehicle appeared on video surveillance three times as described by Miller, 

and 4) when Miller was taken to the scene of the traffic stop, he identified 

Appellant and his co-defendant as the shooters. See The Commonwealth’s 

Brief at 27.

In sum, our review of the record supports the PCRA court’s conclusion 

that Appellant failed to establish his singular claim of trial counsel’s 
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ineffectiveness. We therefore affirm the PCRA court’s order denying 

Appellant post-conviction relief.

Order affirmed.

 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2015