J-S04038-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERNESTO MARTINEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2599 EDA 2018

Appeal from the PCRA Order Entered July 20, 2018

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

No(s): CP-51-CR-0015196-2008

BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED MARCH 10, 2020

Ernesto Martinez (Appellant) appeals pro se from the order dismissing 

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm.

A prior panel of this Court set forth the factual history of this case:

The facts as found by the jury were as follows: Vanneliz Ramos 

and her sister Dalila Ramos testified that on July 3, 2006, they 

received a call from their younger sister Janet Ramos who told 

them that her bicycle had been stolen. The Ramos sisters then 

called Appellant and [his co-defendant] to confront the individuals 

who might have stolen the bike. Appellant and his co-defendant 

made their way down to the scene of the crime, at the intersection 

of 3rd and Indiana Streets, where they became involved in a 

verbal altercation with the unarmed victim, Terrell Adams. The 

witnesses watched the altercation from a distance and they 

observed both Appellant and his co-defendant begin shooting. 

Vanneliz Ramos was able to make identification [of the 

perpetrators] because she had known Appellant all her life and 

had known his co-defendant for about a year.

During the altercation, a crowd of twenty to thirty people 

gathered around the co-defendant and the decedent. Both 
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Appellant and co-defendant started to shoot into the crowd. The 

decedent was shot in the left side of his chest, piercing his lung 

and causing massive internal injuries. He was pronounced dead 

upon reaching Temple University Hospital.

The decedent’s brother, Jonathan Adams, was also shot in the 

abdomen but survived. Luis Rodriguez, an old colleague of 

Appellant, was also shot in the right abdominal area and he [] 

survived.

Ra-chel Wilson was with Vanneliz Ramos and her sister Dalila 

Ramos when they received the call from their sister Janet Ramos 

about the bicycle. [Ra-chel Wilson and Dalila Ramos] had known 

Appellant for a few years and his co-defendant for a few months. 

They too saw Appellant and the co-defendant arguing with the 

decedent. They observed Appellant and the co-defendant with 

guns during the argument and then heard shots being fired. They 

then observed the decedent fall to the ground.

Ra-chel Wilson[,] in her initial statement given approximately 

three weeks after the shooting on July 26, 2006, only identified 

the co-defendant as the shooter because according to her 

testimony, Appellant had threatened her and her family with 

violence if she implicated him as the shooter. However, in a 

verbatim signed statement given to police detectives six months 

after the shooting, she [] identified Appellant as the shooter. By 

its verdict, the jury found this witness credible and believed the 

testimony implicating Appellant.

Furthermore, Vanneliz Ramos[,] in her initial statement given 

January 23, 2007[,] only identified the co-defendant as the 

shooter. However, at the preliminary hearing on August 15, 2007, 

she identified both Appellant and co-defendant as the shooters. 

Again, by its verdict, the jury chose to believe this witness as well. 

At trial, [Ra-chel Wilson and Vanneliz Ramos] testified that both 

Appellant and co-defendant were the shooters.

Andiz Briggs had known Appellant and his co-defendant a few 

months before the shooting took place. He observed a verbal 

altercation between the decedent, Appellant, and his co-defendant 

and observed Appellant and the co-defendant retrieve their guns. 

He saw both [Appellant and the co-defendant] fire at the crowd 

and at the decedent.
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Commonwealth v. Martinez, 2399 EDA 2010 at 2-3 (Pa. Super. Sept. 16, 

2011) (unpublished memorandum) (quoting Trial Court Opinion, 3/1/11, at 1-

3 (citations to notes of testimony omitted)).

The PCRA court summarized the procedural history that followed:

In December [] 2009, Appellant, after a jury trial, was 

convicted of first-degree murder and possession of an instrument 

of crime. On March 10, 2010, this [c]ourt imposed [a] sentence 

of life imprisonment. Appellant appealed to the Superior Court, 

which on September 16, 2011, affirmed the judgment of sentence. 

On March 21, 2012, the Pennsylvania Supreme court denied 

allocatur. On October 1, 2012, the United States Supreme Court 

denied Appellant’s writ of certiorari.

On August 27, 2013, Appellant timely filed a pro se [PCRA 

petition]. This was Appellant’s first PCRA petition. Thereafter, 

Appellant was assigned counsel to represent him. On May 9, 

2014, counsel filed a no[-]merit letter [pursuant to 

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

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

banc)] that incorrectly stated that Appellant failed to timely file 

his pro se petition. On June 12, 2014, Appellant filed a 

supplemental PCRA petition. On October 14, 2014, [c]ounsel 

thereafter filed a second no-merit letter, wherein he discussed one

issue and argued it lacked merit. On May 15, 2015, this [c]ourt 

issued an order denying Appellant PCRA relief and permitting 

counsel to withdraw. On January 24, 2017, following an appeal, 

the Superior Court vacated this [c]ourt’s order and remanded the 

matter because counsel failed to address all of the issues 

Appellant raised in his PCRA petition. New counsel [(PCRA 

Counsel)] was appointed to represent Appellant following remand.

On March 29, 2018, [PCRA Counsel] filed a [no-merit] letter . 

. . stating the issues raised in the pro se petition were meritless 

and that after review of the record, no other issues of arguable 

merit existed. After review of [PCRA Counsel]’s [no-merit] letter 

and after review of the file, this [c]ourt found the issues raised in 

the pro se petition were meritless and that no other issues of 

arguable merit existed. Accordingly, this [c]ourt sent Appellant, 

pursuant to Pa.R.Crim.P. 907, its Notice of Intent to Dismiss. On 

June 26, 2018, Appellant filed a pro se opposition to [PCRA 
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Counsel]’s [no-merit] letter. On July 20, 2018, this [c]ourt 

dismissed the [PCRA] Petition and permitted counsel to withdraw. 

On August 23, 2018,[1] Appellant filed a [pro se] Notice of Appeal 

to the Superior Court. On August 28, 2018, this [c]ourt filed an 

order pursuant to Pa.R.A.P. 1925(b) and Appellant timely replied.

PCRA Court Opinion, 5/7/19, at 1-2.

On appeal, Appellant presents the following issues for review:

A. Was [Trial Counsel] ineffective for failing to object to the 

testimony of [L]uis Rodriguez, Detective Gregory Santamala, and 

Officer William Hunter?

B. Was [Trial Counsel] ineffective for not requesting a limiting 

instruction that would h[ave] carefully explained to the [j]ury the 

limited purpose for which the “Great Equalizer” was admitted?

C. Was PCRA Counsel ineffective for not raising [T]rial [C]ounsel’s 

failure to request a drug instruction for Vannelise Ramos and 

Rachel Wilson?

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1

 “In a criminal case, the date of entry of an order [that triggers the appeal 

period] is the date the clerk of courts enters the order on the docket, furnishes 

a copy of the order to the parties, and records the time and manner of notice 

on the docket.” Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 

2000). The rules of criminal procedure require prompt service of “any order . 

. . on each party’s attorney, or the party if unrepresented.” Pa.R.Crim.P. 

114(B); see also Pa.R.Crim.P. 114(C)(2) (requiring docket entries to contain 

the date of receipt in the clerk’s office of the order, the date appearing on the 

order, and the date of service of the order); Pa.R.Crim.P. 907(4) (requiring 

PCRA court to issue promptly order dismissing PCRA petition without a

hearing, which advises “the defendant by certified mail, return receipt 

requested, of the right to appeal from the final order disposing of the petition 

and of the time limits within which the appeal must be filed”). Our review of 

the docket discloses no indication that the clerk furnished a copy of the July, 

20, 2018 order denying the PCRA petition to Appellant. The only indication in 

the record that Appellant ever received the order was in the prison mail log 

Appellant submitted with his notice of appeal, which states that he received 

the order on August 21, 2018. Thus, Appellant’s August 23, 2018 notice of 

appeal was timely filed because the period for taking an appeal was not

triggered until he received the order dismissing his PCRA petition on August 

21, 2018. See Jerman, 762 A.2d at 368.
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Appellant’s Brief at 4.

We review the denial of PCRA relief by “examining whether the PCRA 

court’s findings of fact are supported by the record, and whether its 

conclusions of law are free from legal error.” Commonwealth v. Busanet, 

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light most favorable 

to the party who prevailed in the PCRA court proceeding.” Id.

Each of Appellant’s issues raise claims of ineffective assistance of 

counsel. With respect to ineffective assistance of counsel claims, our Supreme 

Court has stated:

It is well-settled that counsel is presumed to have been 

effective and that the petitioner bears the burden of proving 

counsel’s alleged ineffectiveness. Commonwealth v. Cooper, 

941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a 

petitioner must establish that: (1) the underlying substantive 

claim has arguable merit; (2) counsel did not have a reasonable 

basis for his or her act or omission; and (3) the petitioner suffered 

prejudice as a result of counsel’s deficient performance, “that is, 

a reasonable probability that but for counsel’s act or omission, the 

outcome of the proceeding would have been different.” Id. A 

PCRA petitioner must address each of these prongs on appeal. 

See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 

2007) (explaining that “appellants continue to bear the burden of 

pleading and proving each of the Pierce elements on appeal to 

this Court”). A petitioner’s failure to satisfy any prong of this test 

is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations 

modified).
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For his first issue, Appellant argues that Trial Counsel should have 

objected when counsel for the co-defendant introduced as substantive 

evidence a statement Luis Rodriguez (Rodriguez) gave to the police after the 

shooting. In his statement, Rodriguez stated that Appellant was the only 

person he witnessed firing a gun. At trial, however, Rodriguez testified that 

he did not recall giving that statement to the police. Appellant asserts that 

because Rodriguez could not recall giving the statement to police, codefendant’s counsel could not cross-examine Rodriguez regarding the 

statement, and the statement should not have been admitted as substantive 

evidence. Additionally, Appellant argues that Trial Counsel compounded his 

failure to object to the introduction of Rodriguez’s statement by failing to 

object when the Commonwealth called two police officers to the stand to

confirm everything Rodriguez said in his police statement.

Even assuming, arguendo, that Appellant’s argument has merit, we 

nevertheless conclude that he was not prejudiced by Trial Counsel’s failure to 

object. The record reflects that at trial, three individuals testified that they 

witnessed first-hand Appellant firing a gun at the victim, Terrell Adams 

(Adams). Ra-chel Wilson (Wilson) testified that she saw Appellant firing a gun 

at the time Adams was shot and that Appellant later boasted about killing

Adams. N.T., 11/30/09, at 141-42, 148-49, 154. Vanneliz Ramos (Ramos) 

stated that she witnessed Appellant firing a gun during the incident and that 

Appellant also bragged to her about killing Adams. N.T., 12/1/09, at 35-36, 
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53-54. Finally, Andiz Briggs similarly testified to witnessing Appellant pull a 

gun and fire it at Adams. N.T., 12/2/09, at 123, 126-29.

Given the overwhelming eyewitness testimony of the murder (i.e., three 

individuals who witnessed Appellant shoot Adams), we cannot conclude that,

even if the statement Rodriguez gave to police should have been excluded at 

trial, its exclusion would have impacted the verdict. Therefore, Appellant 

cannot satisfy the prejudice prong of the ineffective assistance of counsel test, 

and the trial court did not abuse its discretion in denying this claim. See

Wholaver, 177 A.3d at 144.

For his second issue, Appellant argues that Trial Counsel was ineffective 

for failing to ask for a limiting instruction that explained how the jury was to 

use evidence that police recovered a handgun from Appellant’s apartment, six 

months after the murder, similar to the handgun witnesses observed him 

using during the shooting. Appellant asserts that Trial Counsel should have 

requested that the trial court instruct the jury that Appellant’s possession of a 

firearm did not establish his guilt. Appellant’s claim does not warrant relief.

First, Appellant’s claim lacks arguable merit. Our Supreme Court has 

held that “the fact the accused had a weapon or implement suitable to the 

commission of the crime charged . . . is always a proper ingredient of the case 

for the prosecution.” Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 

2015) (quotations and citations omitted). “Any uncertainty that the weapon 

is the actual weapon used in the crime goes to the weight of such evidence.” 
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Id. The trial court instructed the jury on how to weigh the evidence the parties 

presented, see N.T., 12/21/09, at 174-80, and Appellant cites no authority 

that further instructions were necessary with respect to the firearm the police 

recovered from his apartment.

Second, as discussed above, there was overwhelming evidence of 

Appellant’s guilt, as three eyewitnesses testified at trial to having seen

Appellant shoot and kill Adams. See N.T., 11/30/09, at 141-42, 148-49, 154; 

N.T., 12/1/09, 35-36, 53-54; N.T., 12/2/09, 123, 126-29. It is far more likely 

that the jury’s verdict was the result of the three eyewitnesses having 

observed Appellant shoot and kill Adams (two of whom later heard Appellant 

boasting about killing Adams), as opposed to police recovering a firearm from 

Appellant’s home six months after the shooting. Accordingly, because 

Appellant’s second issue fails to satisfy either the arguable merit or prejudice 

prongs of the ineffective assistance of counsel test, the trial court did not 

abuse its discretion in denying this claim. See Wholaver, 177 A.3d at 144.

For his third issue, Appellant argues that PCRA Counsel was ineffective 

for failing to raise a claim that Trial Counsel was ineffective for not requesting 

an instruction indicating that drug use “weakens witness observation and 

memory.” Appellant’s Brief at 23. Appellant asserts that such instruction was 

necessary because Ramos and Wilson indicated at trial that they used drugs 

on the night of the murder.
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Appellant’s third issue is waived. In his appellate brief, Appellant fails 

to develop this claim within the constructs of the ineffective assistance of 

counsel test. Instead, Appellant makes vague and bald assertions that Trial 

Counsel should have requested an instruction relating to witness observations 

and drug use. As this Court has repeatedly explained, 

When briefing the various issues that have been preserved, it 

is an appellant’s duty to present arguments that are sufficiently 

developed for our review. Commonwealth v. Gould, 912 A.2d 

869, 873 (Pa. Super. 2006). The brief must support the claims 

with pertinent discussion, with references to the record and with 

citations to legal authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). 

Citations to authorities must articulate the principles for which 

they are cited. Pa.R.A.P. 2119(b).

This Court will not act as counsel and will not develop 

arguments on behalf of an appellant. Gould, 912 A.2d at 873. 

Moreover, when defects in a brief impede our ability to conduct 

meaningful appellate review, we may dismiss the appeal entirely 

or find certain issues to be waived. Id.; Pa.R.A.P. 2101.

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). Because

Appellant has failed to sufficiently develop his third issue for our review, it is

waived. See id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/20