J.S45039/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ROBERTO LABOY, :

:

Appellant : No. 2166 MDA 2014

Appeal from the PCRA Order November 21, 2014

In the Court of Common Pleas of Lebanon County

Criminal Division No(s).: CP-38-CR-0000979-2006

BEFORE: BOWES, WECHT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 21, 2015

Appellant, Roberto Laboy, appeals from the order entered in the 

Lebanon County Court of Common Pleas denying relief on his timely Post 

Conviction Relief Act1(“PCRA”) petition. Appellant avers the PCRA court 

erred in not finding trial counsel ineffective for: (1) offering erroneous legal 

advice to not testify at trial; (2) failing to investigate the whereabouts of the 

murder weapon; and (3) failing to seek removal of two jurors. We affirm.

On direct appeal, another panel of this Court summarized the facts of 

the underlying crime as follows. “In the early morning of January 21, 2006, 

Tina Garcia and her friend, David Kern, left a bar in Lebanon City[.]” 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
J.S45039/15

- 2 -

Commonwealth v. Laboy, 211 MDA 2012 (unpublished memorandum at 1) 

(Pa. Super. Sept. 11, 2012). Appellant and co-defendant James T. Hower 

(“Co-Defendant”), “wearing parkas with fur hoods,” followed them, and 

eventually accosted them. “Garcia heard one of the men asking Kern for his 

money.” Id. Kern and Garcia told them they did not have any and 

continued walking.

The men pursued Garcia and Kern, and caught up to them 

near a garage. Kern told Garcia to get help as there was 

“gonna be a problem.” As she ran to knock on nearby 

doors, Garcia watched as the two men viciously beat Kern. 

In particular, Garcia observed the taller of the males, 

whom she later identified as [Appellant], punch Kern in the 

chest several times. Shortly thereafter, Kern slumped to 

the ground.

The assailants promptly fled the scene of the attack. 

Garcia . . . summon[ed] the authorities, who arrived to 

find that Kern had died as a result of multiple stab wounds 

to his chest.

Id. at 1-2. Garcia subsequently identified Appellant in a photo array. Both 

Appellant and Co-Defendant were arrested and charged. We note that the 

Commonwealth sought the death penalty against Appellant.

The Commonwealth appealed pretrial matters to the Superior Court, 

and trial did not commence until May of 2011, more than five years after the 

incident. In “the months immediately preceding the trial,” Appellant and his 

appointed trial counsel, Robert Daniels, Esq. (“Trial Counsel”) learned CoDefendant

made a statement to the police that he had been given the 

murder weapon, which was wrapped in a bandana, by a 
J.S45039/15

- 3 -

third party shortly after the incident, and had thrown it 

into a quarry near the Boscov’s Department Store in 

Lebanon. Prior to [Appellant’s] jury trial, [Co-Defendant] 

pled guilty to Third-Degree Murder pursuant to a plea 

agreement which required him to testify against 

[Appellant].

. . . [Co-Defendant] testified in accordance with the 

statement he had made to police. [Appellant] did not 

testify [but called witnesses.]

PCRA Ct. Op., 11/21/14, at 2.

On May 10, 2011, the jury found Appellant guilty of murder of the 

second degree,2conspiracy, aggravated assault, robbery,3and related 

offenses. On July 27th, the trial court imposed life imprisonment and a 

consecutive sentence of ten to twenty years’ imprisonment. On September 

11, 2012, this Court affirmed the judgment of sentence on direct appeal. 4

Our Supreme Court denied allowance of appeal on March 14, 2013.5

On May 9, 2013, Appellant filed a timely pro se PCRA petition. The 

 

2 18 Pa.C.S. § 2502(a)(2).

3 18 Pa.C.S. §§ 903(a), 2702(a)(1), (4), 3701(a)(1)(i).

4 Appellant had filed a timely post-sentence motion, which was denied. On 

direct appeal, Appellant claimed: (1) the Commonwealth committed Brady

violations by withholding certain information; and (2) the evidence was 

insufficient to support his convictions.

5 Commonwealth v. Laboy, 778 MAL 2012 (Pa. Mar. 14, 2013).
J.S45039/15

- 4 -

PCRA court appointed counsel, who did not file an amended petition.6 The 

court held two hearings, on April 28 and May 12, 2014, at which Appellant 

and Trial Counsel testified. On November 21, 2014, the PCRA court issued 

the instant order denying relief. Appellant timely appealed and complied 

with the court’s order to file a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal.

In reviewing the denial of PCRA relief, this Court examines

[“]whether the lower court’s determination is supported by 

the evidence of record and whether it is free of legal 

error.” Where, as here, a petitioner claims that he 

received ineffective assistance of counsel, our Supreme 

Court has stated that:

[A] PCRA petitioner will be granted relief only when 

he proves, by a preponderance of the evidence, that 

his conviction or sentence resulted from the 

“[i]neffective 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.” Generally, counsel’s performance is 

presumed to be constitutionally adequate, and 

counsel will only be deemed ineffective upon a 

sufficient showing by the petitioner. To obtain relief, 

a petitioner must demonstrate that counsel’s 

performance was deficient and that the deficiency 

prejudiced the petitioner. A petitioner establishes 

prejudice when he demonstrates “that there is a 

reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding 

would have been different.” . . . [A] properly pled 

 

6 After granting Appellant’s motion to substitute initial counsel, the PCRA 

court appointed Bret Weist, Esq., who continues to represent Appellant in 

this appeal.
J.S45039/15

- 5 -

claim of ineffectiveness posits that: (1) the 

underlying legal issue has arguable merit; (2) 

counsel’s actions lacked an objective reasonable 

basis; and (3) actual prejudice befell the petitioner 

from counsel’s act or omission.

Commonwealth v. Walker, 110 A.3d 1000, 1003 (Pa. Super. 2015) 

(citations omitted).

“If a petitioner fails to prove any of these prongs, his claim fails.” 

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014), 

appeal denied, 104 A.3d 523 (Pa. 2014). In examining whether “counsel 

had some reasonable basis designed to effectuate his client’s interest . . . we 

are not to employ a hindsight evaluation to determine whether other 

alternatives may have been more reasonable, but whether there was a 

reasonable basis for the course of action actually selected.” Id. at 1027.

In this appeal, Appellant first avers “the PCRA Court incorrectly 

determined [T]rial [C]ounsel had a reasonable basis for advising [him] it 

would not be wise to testify at trial and that Appellant failed to show how he 

sustained prejudice by not testifying.” Appellant’s Brief at 18. He reasons 

“the PCRA Court incorrectly focuse[d] on whether [T]rial [C]ounsel had a 

reasonable basis for advising [him],” instead of “the primary issue of 

whether [T]rial [C]ounsel failed to call [him] to the stand despite [his] 

request to testify.” Id. at 20. Appellant further claims he “wanted to testify 

. . . to clarify issues and attempt to defend against the crimes,” and “was 
J.S45039/15

- 6 -

simply seeking the opportunity to directly face the jury and permit them to 

hear his version of the events.” Id. at 19. We find no relief is due.

At the PCRA hearings, Appellant testified to the following. Prior to 

trial, he and Trial Counsel discussed whether he should testify and discussed 

“the fact that if [he testified he would be] subject to being cross examined 

by the District Attorney and that it could be a bad decision.” N.T., 4/28/14, 

at 7-8. Appellant decided on the last day of trial to testify and told Trial 

Counsel. Counsel responded “it wasn’t a wise decision.” Id. at 10. 

Appellant “felt as though [he] had no say,” that Trial Counsel’s “mind was 

very much made up” and that counsel “rushed things.” Id. When asked 

why he wanted to testify, Appellant responded,

I felt as though I needed to clarify some things and that I 

needed to in some way defend myself. And I just wanted 

the opportunity to sit down and face the jury and allow 

them to hear from my side . . . because I felt as though it 

weighed on their minds that I did not take the stand.

Id. at 9. In response to the question of why testifying would have benefited 

his case, Appellant stated: “I am not sure if it was going to benefit anything, 

but I believe that I had every right to sit on that stand and to fight for my 

life.” Id. at 11. On cross-examination, Appellant conceded that Trial 

Counsel was concerned “from a strategy standpoint . . . about subjecting 

[him] to cross-examination by the Commonwealth.” N.T., 5/12/14, at 16-

17.

Trial Counsel confirmed he did not “think it would have been a good 
J.S45039/15

- 7 -

idea for [Appellant] to testify” and that he advised Appellant with this 

opinion. Id. at 23. Trial Counsel stated Appellant “may have” informed him 

during trial of his desire to testify, but Trial Counsel did not remember the 

specific conversation: “I am sure we discussed it[, but] I can’t sit here today 

and tell you exactly what was said between the two of us.” Id. at 24-25. 

However, Trial Counsel also stated that if Appellant specifically requested to 

testify, he would have called him as a witness. Id.

With respect to Appellant’s claim that Trial Counsel prevented him 

from testifying, we first note the trial transcript does not include an oral 

colloquy of Appellant for waiving his right to testify, and there is no written 

colloquy in the record.7 The PCRA court credited Trial Counsel’s PCRA 

hearing testimony and found, “Although [T]rial [C]ounsel did not feel that it 

was a good idea for [Appellant] to testify, he never told [Appellant] that he 

could not do so.” PCRA Ct. Op. at 5-6 (citing N.T., 5/12/14, at 17). 

Instead, counsel merely “advised him that ‘it wasn’t a wise decision.’” Id.

The PCRA court further found Trial Counsel “had a reasonable basis for 

advising [Appellant] that it would not be a wise decision for him to testify at 

trial.” PCRA Ct. Op. at 8. It held, “[T]he avoidance of opening up 

[Appellant] for cross-examination in a capital murder case was sound advice 

 

7 Appellant’s brief states the general rule that “if a defendant voluntarily 

waives the right to testify after colloquy on the record, then he is precluded 

from claiming trial counsel was ineffective for not calling him to the stand.” 

Appellant’s Brief at 18-19. However, he does not specify whether there was 

a colloquy in this case.
J.S45039/15

- 8 -

and was reasonable trial strategy under the circumstances.” Id. We 

reiterate that Appellant conceded Trial Counsel had a reason for advising 

him to not testify. We find the court’s ruling is supported by the record and 

free of legal error.8 See Walker, 110 A.3d at 1003; Charleston, 94 A.3d 

at 1027. Accordingly, we find no relief due on Appellant’s first claim.

Appellant’s second issue is whether the PCRA court erred in denying 

his claim that Trial Counsel was ineffective for not investigating CoDefendant’s statements about the knife. In support, Appellant asserts the 

following. “Co-Defendant’s statements regarding the location of the alleged 

murder weapon [were] a key piece of evidence in the Commonwealth’s case 

in chief.” Appellant’s Brief at 21. “Although [T]rial [C]ounsel did not know 

whether the knife could be found in the quarry, [he] did not visit the . . . 

quarry or conduct any independent investigation.” Id. Although “a great 

deal of time had elapsed between the time the knife was allegedly disposed 

 

8 The PCRA court denied relief on an additional ground, that Appellant “failed 

to identify the substance of any testimony he could have offered to establish 

his innocence of [the] charges or to specify how his testimony would have 

affected the outcome of his case.” PCRA Ct. Op. at 9. However, this Court 

recently held: 

[T]he appropriate standard for assessing whether a 

defendant was prejudiced by trial counsel’s ineffectiveness 

regarding the waiver of his right to testify is whether the

result of the waiver proceeding would have been different 

absent counsel’s ineffectiveness, not whether the outcome 

of the trial itself would have been more favorable had the 

defendant taken the stand.

Walker, 110 A.3d at 1005.
J.S45039/15

- 9 -

in the quarry and Co-Defendant’s statements,” “[a]t a minimum, it would 

have been prudent to consider the possibility based upon Appellant’s 

request.” Id. “[T]he knife may have shed light on who was actually 

responsible for [the victim] Mr. Kern’s death, potentially to the detriment of 

the Commonwealth’s case. Also, an investigation may have . . . render[ed] 

Co-Defendant’s statements unreliable or inconsistent.” Id. at 21-22 

(emphasis added). We find no relief is due.

We emphasize that Appellant avers only the possibility that an 

investigation would have yielded favorable information or evidence, without 

explaining what the new information would be. See id. at 21. Likewise, at 

the PCRA hearing, Appellant testified, “It’s possible [an investigation] could 

have led to whether [Co-Defendant’s] claims [were] reliable or if [CoDefendant] was, in fact, deceiving authorities. Recovery of the knife . . . 

possibly may have shed light on who actually was responsible for Mr. Kern’s 

homicide.” N.T., 4/28/14, at 13.

Trial Counsel, on the other hand, testified at the PCRA hearing as 

follows. He did not investigate the truth of Co-Defendant’s statements or 

the location of the knife. N.T., 5/12/14, at 26. He opined, “I don’t see how 

it would have advanced his cause whatsoever,” and that an investigation 

“would only corroborate [Co-Defendant’s] story.” Id. at 26-27. Instead, 

Trial Counsel reasoned, “by leaving [the whereabouts of the knife] as an 

open-ended question, I think that was a question for the jury to consider.” 
J.S45039/15

- 10 -

Id. at 21. Furthermore, Trial Counsel “cross examine[d Co-Defendant] 

vigorously . . . and pointed out in closing [arguments] that the police didn’t 

attempt to retrieve the weapon.” Id.

In denying relief, the PCRA court found Trial Counsel “articulated a 

reasonable basis for his failure to conduct this investigation,” and that 

successful retrieval of the knife “would have only reinforced [CoDefendant’s] credibility to the jury.” PCRA Ct. Op. at 11. The court further 

agreed with counsel’s doubt “that physical examination of the knife, after it 

sat in the quarry for several years, would offer anything useful in 

exonerating” Appellant. Id. The court also found Trial Counsel’s strategy, 

“that it was better to leave the question open in the minds of the jurors as to 

why the Commonwealth had not recovered the knife,” “had a much greater 

likelihood of casting the shadow of doubt over [Co-Defendant’s] testimony 

and was appropriate under these circumstances.” Id. We find no error in 

the court’s analysis. See Walker, 110 A.3d at 1003; Charleston, 94 A.3d 

at 1027.

In his final issue, Appellant claims the PCRA court erred in not finding 

Trial Counsel ineffective for failing to seek removal of two jurors, Juror 3 and 

Juror 11. For ease of disposition, we first summarize:

Per the agreement of the parties, all guilt-phase witnesses 

were sequestered during the course of the trial, but 

potential penalty-phase witnesses were not sequestered. 

During [trial,] Juror 3 indicated that he recognized 

someone sitting in the audience in the Courtroom . . . . At 

that point, the jury was sent upstairs, Juror 3 was brought 
J.S45039/15

- 11 -

back to the Courtroom, was sworn in and questioned by 

the Court. The Court asked Juror 3 whether the presence 

of the individual in the Courtroom during the guilt phase of 

the trial would impact his decision in any way in the event 

the person was to testify in the penalty phase of the 

proceeding. Juror 3 answered that he would still be able 

to be fair and impartial during the guilt phase. Neither the 

Commonwealth or [T]rial [C]ounsel asked any questions of 

Juror 3.

Later, Juror 11 related to the Court that she had gone 

to high school with one of the witnesses who testified 

during presentation of the Commonwealth’s case. Juror 11 

advised the Court that she had never socialized with the 

witness, the two were not close friends, and that they had 

no contact for six years since graduation. Juror 11 noted 

that she had not recognized the witness’s name, but had 

recognized her face when she was called to testify. When 

the trial was reconvened, the Court called the 

Commonwealth attorney and [T]rial [C]ounsel to sidebar 

and notified them of the situation. We explained that Juror 

11 had indicated that she would be able to continue as a 

fair and impartial juror despite her acquaintance with the 

witness. Neither the Commonwealth or trial counsel 

thought it necessary to question Juror 11 under the 

circumstances. [Appellant] now claims that he requested 

[T]rial [C]ounsel [to] seek removal of both jurors.

PCRA Ct. Op. at 12-13 (citations to trial transcript omitted).

At the PCRA hearing, Appellant testified that when the issues with the 

juror was brought to the trial court’s attention, he requested Trial Counsel to 

seek their removal. N.T., 5/12/14, at 11-12. Appellant stated, “I simply no 

longer wanted them on the jury panel once they brought forth that they 

knew [a] possible [or] potential witness.” Id. at 12. Trial Counsel testified 

he did not remember whether Appellant requested him to take action 

concerning the jurors, but that if Appellant did, he would have complied. Id.
J.S45039/15

- 12 -

at 28-29.

In the instant appeal, Appellant argues Trial Counsel’s failure to seek 

removal of the jurors “was in direct contradiction to Appellant’s request.” 

Appellant’s Brief at 23. Appellant further contends “Trial [C]ounsel should 

have, at a minimum, objected to preserve Appellant’s right.” Id. We find 

no relief is due.

In finding no ineffectiveness, the PCRA court opined: 

Both jurors were appropriately questioned by the Court 

and indicated that they would be able to remain fair and 

impartial in their consideration of the evidence. 

[Appellant] has not shown how his case was prejudiced by 

their remaining on the jury or how the jurors’ tenuous 

connections with the individuals involved in the case 

affected the outcome of the case.

PCRA Ct. Op. at 14-15. We find no error in the PCRA court’s analysis. See 

Walker, 110 A.3d at 1003.

Finally, we note that in the appellate brief, Appellant’s counsel avers

that after the instant notice of appeal was filed, Appellant sent him a letter, 

“request[ing] for the first time that four additional issues be raised in this 

matter.” Appellant’s Brief at 24. The four claims are allegations of trial 

counsel’s and PCRA counsel’s ineffectiveness. We hold all of these are 

waived for failure to present them first to the PCRA court. See 

Commonwealth v. Henkel, 90 A.3d 16, 26 (Pa. Super. 2014) (en banc) 

(“[P]etitioner could not raise PCRA appellate counsel's ineffectiveness for the 

first time on appeal.”); Commonwealth v. Bedell, 954 A.2d 1209, 1216 
J.S45039/15

- 13 -

(Pa. Super. 2008) (stating claims not raised in PCRA court are waived and 

cannot be raised for first time on appeal).

For the foregoing reasons, we affirm the order denying relief on 

Appellant’s PCRA petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2015