J-S52021-20 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

OSCAR MARTINEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 885 EDA 2020

Appeal from the PCRA Order Entered March 4, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008142-2010

COMMONWEALTH OF PENNSYLVANIA

v.

OSCAR MARTINEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 886 EDA 2020

Appeal from the PCRA Order Entered March 4, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008143-2010

BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 22, 2021

Oscar Martinez (Appellant) appeals from dismissal of his petition 

brought under the Post Conviction Relief Act (PCRA)1in the Court of Common 

Pleas of Philadelphia. Appellant raises certain complaints sounding in alleged 

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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ineffective assistance of trial and appellate counsel, as detailed herein. 

Appointed counsel has filed a letter of no merit and motion to withdraw, 

consistent with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We 

affirm, and grant counsel’s application to withdraw.

The trial court summarized the facts as follows when this matter was on 

direct appeal:

The Commonwealth began its case by submitting a written 

stipulation concerning police and medical records and then called 

its first witness, the complainant at [docket CP-51-CR-0008143, 

J.O.], age fourteen at the time of trial, who testified as follows:

[J.O.] identified [Appellant] as her grandmother’s husband whom 

she had known longer than she could remember and with whom 

she had a grandfather-granddaughter relationship. She would see 

him often at her grandmother’s house and her home in 

Philadelphia where she lived with her stepfather, mother and 

sister. Her mother worked at a store down the block from their 

home and her stepfather worked in security on the first floor of 

their building. There were often times when [Appellant] would 

come visit her when she was alone while her parents were at work 

and her sister would cook and take dinner to them when they were 

on their . . . breaks. On one such occasion, three years prior to 

trial when [J.O.] was eleven, [Appellant] said to her that they were 

going to play a game. Thinking he meant a board game, she went 

into her room to get one and he followed her, closed the door and 

said they were going to play a different type of game. He put her 

on the floor, took off her clothes and engaged her in intercourse.

After that, her back started to hurt and she experienced a certain 

type of odor coming from her vagina. She told her mother about 

those complaints[, and her mother] took [J.O.] to a regular doctor 

who conducted a urine test and said it was just a urinary tract 

infection. About a year or so later, after her family had moved to 

New Jersey and [J.O.] was still experiencing the odor, [J.O.’s] 

mother took her and her sister, [S.O.], to a hospital in New Jersey 

where [J.O.] was given another urine test and an OB/GYN exam 
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and was told she had a “[STI] called trich” (a [Sexually 

Transmitted Infection], Trichomoniasis, often called “trich”), for 

which she was given antibiotics. [J.O.] then told the doctor, who 

told [J.O.’s] mother, about the incident with [Appellant]. 

On cross-examination, [J.O.] said she didn’t tell anyone about the 

incident because she was scared and didn’t know if anyone would 

believe her because she was only 11 and [Appellant] was a grown 

man. After cross-examination, the Commonwealth entered into 

evidence by stipulation the medical records [of J.O.] from “Atlantic 

Care,” the hospital to which she referred, and then called [J.O.’s] 

sister, the complainant at [docket CP-51-CR-0008142, S.O.], age 

eighteen at [the] time of trial. 

[S.O.] also identified [Appellant] as her grandmother’s husband 

whom she had known longer than she could remember and with 

whom she had a grandfather-granddaughter relationship. 

Whenever her parents were working[,] she and her sister would 

take turns bringing them dinner, which would take about twentyfive to thirty minutes, and [Appellant] would come visit them 

about twice a week. One time, when she was about eleven or 

twelve and her sister took her stepfather dinner, [Appellant] told 

[S.O.] to go into her bedroom, walked in behind her, closed the 

door, told her not to say anything, took off her clothes and his 

pants and had intercourse with her. When asked whether this 

happened more than once, [S.O.] said [Appellant] would come 

over at least twice a week and it would happen every time, 

continuing from the time she was eleven, the last time when she 

was a freshman in high school in 2008-2009. It happened twice 

while she and [Appellant] were watching television in her 

grandmother’s bedroom at her [grandmother’s] and [Appellant’s] 

house, where she and her sister also had bedrooms, always when 

they were alone. In May of 2010, [S.O.] went to the hospital in 

New Jersey with her mother and her sister due to her having back 

and cramping pains and told the doctor there about the incidents 

with [Appellant] and also informed her mother. 

On cross-examination, defense counsel had [S.O.] agree that they 

found nothing wrong with her at the hospital,[3] and, in Family 

Court, [S.O.] testified that [Appellant] had intercourse with her 

three times a week from when she was eleven [until] when she 

was fifteen, which came to 627 times, but, previous to that had 

told the police that it only happened twelve times, which [S.O.] 

attributed to increasing memories over time, and to her perceived 
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differences between the exact questions that the police and the 

prosecutor had asked her; counsel also noted that, while 

[Appellant] was a much larger person than [S.O.] and [S.O.] 

described him as having laid right on top of her with his arms on 

the floor, he did not crush her. After redirect and re-cross, the 

prosecutor entered the following into evidence by stipulation:

Cindy Delgado would testify [t]hat she’s a pediatrician 

who works at a Child Abuse Research Education and 

Service Institute, also known as CARES . . . [and t]hat 

on June 24th of 2010, she examined [S.O.] for a 

diagnosis and treatment of any residual findings of 

sexual abuse[.]

[T]hat [S.O.] arrived at CARES with her mother, 

father and sister, [J.O.]

Prior to the examination, Dr. Delgado spoke with 

[S.O., who] told the doctor that she never had 

consensual sex and does not have a boyfriend. She 

also never had vaginal discharge, odor or bleeding or 

a history of accidental genital trauma. [S.O.] further 

stated that she was almost 12 years old when 

[Appellant] began abusing her. [S.O.] said that she 

thought it was not right when he started touching 

her[.] [S.O.] said [Appellant] touched her at her 

grandmother’s house and that he took off [her] 

clothes, laid [her] on the ground, climbed on top of 

[her], spread [her] legs and put his penis in [her] 

vagina. When he was finished, [S.O.] went into the 

bathroom and peed, it hurt and blood was in the toilet. 

[Appellant], she said, told her she could not tell 

anybody because nobody would believe her. [S.O.] 

told Dr. Delgado that it happened a couple of times 

between the ages of 11 and 15. [S.O.] also said that 

two years ago it happened at her stepfather’s [home].

* * *

The prosecutor then called [Victims’] mother, [C.S.], who 

confirmed everything in which her daughters described her being 

involved, including the visit to the hospital in Atlantic City [in May 
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2010] where a doctor there told her that [J.O.] had an infection 

that was transmitted by sex, for which they treated her and, after 

some follow-up care, was completely cleared up. On crossexamination, [defense] counsel took great pains pointing out that, 

at the hospital, she was given discharge instructions which said to 

call in three days for lab results but she had said that she and her 

daughters received the test results that same day. [C.S.] replied 

that she did not recall those instructions, reiterated her 

recollection of getting the results at the hospital, and pointed out 

that they (probably meaning only [J.O.]) also were prescribed 

their antibiotics that same day. The prosecutor moved the state’s 

exhibits into evidence, C-1 being the Atlantic City hospital records 

for [J.O.], C-2 the [Dr.] Delgado stipulation and C-3[,] a medical 

report that went with the latter, and rested.

The defense called [M.S.P.], who characterized herself as 

[Appellant’s] lover, was sexually active with him from 2006 up 

until 2009, would frequently get tested for STDs, including trich, 

the last time having been June 30, 2010, and never tested 

positive. Defense counsel submitted by stipulation[:] “That there 

were three character witnesses [who would testify] that 

[Appellant] is a person of good character of peacefulness, 

honesty, law-abiding.” . . . The defense then moved into evidence 

D-2, the hospital records which the prosecutor had moved in as 

C-1, but which included the discharge instructions about which he 

had questioned [Victims’] mother containing the recommendation 

of a follow-up call that were not included with the latter, to which 

there was no objection, and D-3, which counsel characterized as 

[several learned treatises on trich and the follow-up tests 

associated with diagnosis of trich, which the court admitted over 

the Commonwealth’s objection].

The defense then rested, and, after announcing its verdict, the 

court explained[:] The existence or nonexistence of the sexually 

transmitted disease is not a dispositive factor in this case. The 

primary factor as in all sexual assault cases has to do with the 

[c]ourt’s analysis of credibility of the Commonwealth witnesses 

which [the court] found not to be wanting. The verdict would have 

been the same even if there [were] no scientific evidence.
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(Trial Ct. Op., 7/29/16, at 2-6) (internal citations and footnote omitted). 

Following a bench trial, the trial court convicted Appellant of two counts each 

of rape and corruption of minors.2

There was no timely direct appeal, but Appellant filed an initial PCRA 

petition successfully seeking reinstatement nunc pro tunc of his appellate 

rights. This Court heard his appeal and affirmed his conviction on May 24, 

2017, and Appellant’s petition for allowance of appeal with our Supreme Court 

was denied on December 20, 2017.3 He filed the present petition under the 

PCRA, which we treat as an initial petition, on July 3, 2018.4 On March 4, 

2020, the trial court dismissed his petition without a hearing, having complied 

with the procedures outlined in Pa.R.Crim.P. 907. On March 11, 2020, 

Appellant filed distinct notices of appeal in each matter captioned here; this 

Court consolidated these appeals sua sponte on June 4, 2020.

Appellant’s appointed PCRA counsel (PCRA Counsel) indicated in his 

filing responding to the trial court’s order per Pa.R.A.P. 1925(b) that he 

intended to file a letter of no merit, but that Appellant wished to raise the 

following issues on appeal:

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2 18 Pa.C.S. §§ 3121(a)(1); 6301(a)(1)(i), respectively. 

3 See Commonwealth v. Martinez, 1735 EDA 2016 (Pa. Super. 2017); 

Commonwealth v. Martinez, 258 EAL 2017 (Pa. Dec. 20, 2017).

4 Because Appellant filed his petition within a year of his judgment of sentence 

becoming final, it is timely; see 42 Pa.C.S. § 9545(b)(1) and (3).
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1. [The trial court] committed an abuse of discretion by denying 

Appellant an evidentiary hearing and post-conviction collateral 

relief on his claim asserting that trial counsel was ineffective for 

failing to call Carmen Pacheco and Javier Negron as fact witnesses 

at trial.

2. [The trial court] committed an abuse of discretion by denying 

Appellant an evidentiary hearing and post-conviction collateral 

relief on his claim alleging that trial counsel was ineffective for 

failing to call character witnesses during Appellant’s trial.

Matters Complained of on Appeal, 6/24/20, at 1 (unpaginated); see also 

Finley Letter, 7/14/20, at 6, 9. Appellant has not filed a response to counsel’s 

Finley Letter with this Court.

“In PCRA proceedings, an appellate court's scope of review is limited by 

the PCRA's parameters; since most PCRA appeals involve mixed questions of 

fact and law, the standard of review is whether the PCRA court's findings are 

supported by the record and free of legal error.” Commonwealth v. Pitts, 

981 A.2d 875, 878 (Pa. 2009) (citation omitted). “It is well-settled that a 

PCRA court's credibility determinations are binding upon an appellate court so 

long as they are supported by the record.” Commonwealth v. Robinson, 

82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this Court reviews 

the PCRA court's legal conclusions de novo. Commonwealth v. Rigg, 84 

A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted). 

PCRA petitioners have a general rule-based right to the assistance of 

counsel for their first PCRA petition. Pa.R.Crim.P. 904(C); accord

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en 
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banc) (“a criminal defendant has a right to representation of counsel for 

purposes of litigating a first PCRA petition through the entire appellate 

process[ ]”). “The indigent petitioner's right to counsel must be honored 

regardless of the merits of his underlying claims, even where those claims 

were previously addressed on direct appeal, so long as the petition in question 

is his first.” Commonwealth v. Powell, 781 A.2d 1017, 1019 (Pa. Super. 

2001) (citation omitted). “Moreover, once counsel is appointed, he [or she] 

must take affirmative steps to discharge his [or her] duties.” Id.

Our system of collateral review allows for appointed counsel, caught 

between their duty to the appointed client and their duty to abstain from 

pursuing frivolous claims, to untie this Gordian knot by adhering to the 

dictates of Turner and Finley, thereby providing the courts with an analysis 

of an appellant’s claims and any other issues apparent from the record, and 

with the assurance that counsel’s comprehensive review of the matter 

(including review of the complete record and of trial preparation, trial, and the 

direct appeal) has unearthed no further issues. See Commonwealth v. 

Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (a Turner/Finley letter must 

outline the nature and extent of counsel’s diligent review of the case, list the 

issues upon which petitioner seeks review, and explain why those issues lack 

merit).

We find that PCRA Counsel has complied with the requirements of 

Turner/Finley. PCRA Counsel notes that he reviewed the issues raised in 

Appellant’s filings and the entire record. Finley Letter at 4. PCRA Counsel 
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also analyzes the issues upon which Appellant seeks review, explaining their 

lack of merit with reference to the relevant facts and applicable law. Id. at 6-

9, 9-16. We agree with PCRA Counsel’s analysis, as detailed infra.

1. PROPOSED FACT WITNESSES

Appellant asserted that trial counsel was ineffective for failing to call as 

fact witnesses Carmen Pacheco and Javier Negron. Finley Letter at 6. The 

proposed testimony would allegedly have established that Appellant’s stepson, 

Negron, never saw Appellant alone with the victims, and would have testified 

as to his understanding of Appellant’s work schedule (which would supposedly 

show that the victims’ claims, being incompatible with that schedule, must be 

cast into doubt). Id. at 6-7. Appellant’s spouse, Pacheco, would allegedly 

have testified that Appellant was “always” with her or at work, and that she 

simply does not believe Appellant to have committed these crimes. Id. at 6.

The trial court analyzes this claim as follows: “According to [Appellant,] 

he was prejudiced because the two witnesses would have testified to [his] 

good character, his work schedule, and the fact that he was not with or around 

the victims during the alleged times of abuse.” Trial Ct. Op., 6/30/20, at 4. 

However, the trial court concludes that Appellant could not have been 

prejudiced by the absence of the proposed testimony, because the proposed 

witnesses, Appellant’s spouse and stepson, would have been impeached for 

bias. Id. at 5. Further, the proposed testimony, to the extent that its purpose 

was to establish the impossibility of the alleged crimes because of different 

recollections of Appellant’s schedule, could not have effectively countered the 
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testimony put forth by the Commonwealth, as the testimony of the child 

victims understandably did not include exact dates and times; thus, the 

proposed testimony that Appellant “was not at the scene of the crime on many 

occasions is benign, inexact, and carries no evidentiary weight.” Id. at 6. 

“To establish trial counsel’s ineffectiveness, a petitioner must 

demonstrate: (1) the underlying claim has arguable merit; (2) counsel had no 

reasonable basis for the course of action or inaction chosen; and (3) counsel's 

action or inaction prejudiced the petitioner.” Commonwealth v. Freeland, 

106 A.3d 768, 775 (Pa. Super. 2014) (citing Strickland v. Washington, 

466 U.S. 668 (1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)). 

Petitioners must show by a preponderance that their conviction or sentence 

resulted from ineffective assistance that, in the case’s particular 

circumstances, so undermined the truth-finding function that no reliable 

adjudication of guilt or innocence was possible. Id. We begin by presuming 

that counsel is effective, and that not every error by counsel can or will result 

in a violation of a petitioner's Sixth Amendment right to counsel. 

Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004). 

Where an ineffectiveness claim hinges on the proposed testimony of 

witnesses who went uncalled at trial, petitioners must establish that the 

proposed witnesses were available and willing to testify, that counsel knew or 

should have known of the proposed witnesses, and that the absence of the 

proposed testimony so prejudiced the petitioner that they were denied a fair 

trial. Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014). 
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Here, the trial court and PCRA Counsel agree that the proposed 

testimony would not have altered the outcome of Appellant’s trial. Trial Ct. 

Op. at 6; Finley Letter at 8.5 We agree with these independent analyses, as 

the proposed testimony lacks specifics, and even if it was specific enough to 

carry some value, the complaints of the child witnesses are not so easily 

capable of rebuttal because they did not testify to a series of specific dates 

and times upon which the abuse occurred (of course, such fuzziness is to be 

expected from witnesses recounting childhood events). Further, we note that 

at trial, a stipulation was entered that three character witnesses would testify 

to Appellant’s peaceful, honest, and law-abiding reputation. N.T. Trial, 

5/11/12, at 103. To the extent that Appellant’s spouse would testify that she 

does not believe him guilty, this testimony potentially strays into character, 

rather than fact, testimony. Thus Appellant could not have been prejudiced 

by its absence as the Commonwealth and trial court both accepted the 

character stipulation at face value. See id. Appellant has not established 

that he is entitled to a hearing on this claim; thus, it was properly dismissed.

2. FAILURE TO CALL CHARACTER WITNESSES

PCRA Counsel notes that Appellant’s claim as to ineffectiveness for 

failure to call character witnesses is inadequately pled, as Appellant failed to 

provide essential data, certificates, or affidavits, by which the alleged value of 

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5 PCRA Counsel (who, we note, was appointed for this appeal but was not 

Appellant’s counsel during PCRA proceedings below) also notes that Appellant 

failed to plead that Pacheco and Negron were available and willing to testify 

at trial. Finley Letter at 7.
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the proposed testimony might be weighed. Finley Letter at 9. PCRA Counsel 

also notes the stipulation to character testimony we reference supra, and 

concludes that the proposed testimony would, at best, have been merely 

cumulative. Id. at 10. We are constrained to agree, as we cannot see how 

cumulative character testimony would have altered Appellant’s situation (and 

it is also unclear whether Appellant understands what proposed testimony 

supported the stipulation at trial; thus Appellant may be basing this claim on 

proposed testimony that was actually included in the stipulation). This claim 

fails.

3. REMAINING CLAIMS

PCRA Counsel also analyzes two claims that were not included in 

amended filings below but that were raised at some point prior by Appellant. 

Finley Letter at 11-16. Appellant apparently argued that trial counsel should 

not have stipulated to the testimony of Dr Cindy Delgado, as she was not 

properly certified as an expert and her report contains inadmissible hearsay. 

Id. at 11-12. Appellant also argued that trial counsel was ineffective for 

advising him to proceed via bench trial rather than asserting his right to a trial 

by jury. Id. at 12. These issues were not raised in Appellant’s amended 

petitions below. Id. 

PCRA Counsel also observes that the trial court specified that its guilty 

verdict was predicated on credibility determinations and would have been the 

same without any scientific evidence. N.T. Trial, 5/11/12, at 104. The trial 
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court made this statement as it announced the verdict, and not in response to 

Appellant’s after-the-fact arguments; thus, it carries especial weight. 

Further, Appellant was given a thorough on-the-record colloquy as to 

his right to a trial by jury. Finley Letter at 15; N.T. Trial, 5/11/12, at 6-13. 

PCRA petitioners “may not obtain post-conviction relief by claiming that [they] 

lied” during waiver colloquies. Commonwealth v. Bishop, 645 A.2d 274, 

277 (Pa. Super. 1994) (citations omitted). This claim necessarily fails.

Order affirmed. Counsel permitted to withdraw.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/21