J-S19039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JESUS ROSARIO TORRES, :

:

Appellant : No. 1223 EDA 2015

Appeal from the PCRA Order March 9, 2015 

in the Court of Common Pleas of Pike County,

Criminal Division, No(s): CP-52-CR-0000286-2008

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 04, 2016

Jesus Rosario Torres (“Torres”) appeals from the Order denying his 

first Amended Petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”).1 Additionally, Torres’s appointed counsel, Brendan R. Ellis, 

Esquire (“Attorney Ellis”), has filed a Petition to Withdraw as counsel, and an 

accompanying no-merit brief pursuant to Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988) (en banc). We grant Attorney Ellis’s Petition to Withdraw and 

affirm the Order.

The PCRA court set forth the procedural history underlying this appeal 

as follows:

Following a seven[-]day jury trial in April and May, 2010, 

[Torres], represented by Attorney Michael Weinstein (“Attorney 

Weinstein”), was convicted of the following charges: [] murder in 

the first degree; [] criminal conspiracy to commit murder in the 

 

1 See 42 Pa.C.S.A. §§ 9541-9546.
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first degree; [] kidnapping; and [] criminal conspiracy to commit 

... kidnapping. On June 24, 2010, th[e trial c]ourt sentenced 

[Torres] to incarceration in a State Correctional Facility for the 

balance of his life. [Torres] filed a timely appeal to the Superior 

Court[,] ... [which] affirmed [Torres’s] sentence. [See 

Commonwealth v. Torres, 34 A.3d 224 (Pa. Super. 2011) 

(unpublished memorandum.] [Torres] filed a Petition for 

Allowance of Appeal to the Supreme Court of Pennsylvania[,] 

which was denied on February 1, 2012. [See Commonwealth 

v. Torres, 37 A.3d 1195 (Pa. 2012).]

[Torres] then filed the underlying pro se [PCRA Petition]. 

Counsel was appointed for [Torres] (hereinafter “PCRA 

Counsel”). On October 23, 2012, PCRA Counsel filed a Motion to 

Withdraw as Counsel along with a five[-]page “No[-]Merit 

Letter[,]” in which PCRA Counsel outlined his rationale. Th[e 

PCRA c]ourt granted PCRA Counsel’s Motion to Withdraw and 

notified [Torres] that his [PCRA Petition] would be dismissed 

unless a response was filed within twenty (20) days. [Torres] 

filed a Petition for Extension of Time to Respond to Court Order 

on November 8, 2012. The Petition was granted and [Torres] 

was given an additional sixty [] days to file his response.

[Torres] filed an Amended [PCRA] Petition ... on January 7,

2013, claiming ineffective assistance of counsel at trial. 

[Specifically, Torres] claimed that Attorney Weinstein [had] 

advised [Torres] not to testify, thereby depriving [Torres] of 

both his right to testify and his right to [a] coherent trial 

strategy. [Torres] averred further that th[e trial c]ourt erred by 

failing to colloquy [Torres] to determine whether [his] waiver of 

the right to testify was knowing and voluntary. A hearing was 

scheduled for February 25, 2013[,] and continued to March 25, 

2013 at [Torres’s] request.

[Torres] filed a Motion for Appointment of Counsel on 

February 27, 2013[,] which was subsequently denied on the 

ground that [Torres] previously had the benefit of appointed 

PCRA Counsel[,] who was granted leave to withdraw after 

finding no merit in [Torres’s] claims. The hearing on [Torres’s] 

Amended [PCRA] Petition took place on March 25, 2013 

[(hereinafter “PCRA Hearing”)], wherein [Torres] appeared pro 

se[,] with the benefit of an interpreter. During the [PCRA 

H]earing, [Torres] neither presented evidence nor called 
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witnesses in support of his Amended Petition. [Torres’s] 

Amended Petition was denied.

[Torres] filed a timely appeal on April 16, 2013. Th[e 

PCRA c]ourt submitted a 1925[(a)] Opinion on June 10, 2013, 

and the Superior Court affirmed the decision by Order dated 

December 4, 2013. [See Commonwealth v. Torres, 93 A.3d 

500 (Pa. Super. 2013) (unpublished memorandum).] [Torres] 

then filed a Petition for Allowance of Appeal with the Supreme 

Court of Pennsylvania. On September 29, 2014, the 

Pennsylvania Supreme Court vacated the decision of the 

Superior Court and remanded the matter to th[e PCRA c]ourt 

with direction to appoint counsel for the purpose of assisting 

[Torres] in a limited evidentiary hearing. [See Commonwealth 

v. Torres, 101 A.3d 781 (Pa. 2014).]

Th[e PCRA c]ourt appointed Attorney [] Ellis ... to assist 

[Torres,] and scheduled an evidentiary hearing for March 3,

2015. Following the hearing, th[e PCRA c]ourt issued an Order 

denying [Torres’s] Amended [PCRA] Petition on March 9, 2015. 

PCRA Court Opinion, 6/1/15, at 1-3 (some capitalization and paragraph 

breaks omitted).

Torres then filed a pro se Notice of Appeal from the March 9, 2015 

Order.

2

 The PCRA court ordered Torres to file a Pa.R.A.P. 1925(b) concise 

 

2 We note that Torres’s Notice of Appeal had to be filed by April 8, 2015. 

The PCRA court’s docket indicates that the Notice of Appeal was entered on 

April 10, 2015. Torres dated the Notice of Appeal April 6, 2015. Due to the 

current state of the certified record, we are unable to determine whether

Torres, an inmate, had deposited his Notice of Appeal with prison authorities 

for mailing prior to the expiration of the thirty-day appeal period. See 

Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) 

(setting forth the “prisoner mailbox rule” and deeming the appellant’s notice 

of appeal timely pursuant to this rule where the certified record was 

inadequate to confirm whether the appeal was, in fact, untimely). 

Additionally, neither the Commonwealth nor the PCRA court has challenged 

the timeliness of Torres’s Notice of Appeal. Accordingly, we deem the appeal 

to be timely filed. See id.
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statement of errors complained of on appeal. Torres timely filed a pro se

Concise Statement. 

Subsequently, Attorney Ellis filed with this Court a Petition to Withdraw 

as counsel, and an accompanying Turner/Finley brief, asserting counsel’s 

opinion that there were no non-frivolous issues to be raised on appeal. In 

response, Torres filed with this Court a pro se “Motion For Leave To File Brief 

for Appellant Pro Se.” We permitted Torres to file a pro se appellate brief, 

within thirty days. Torres then timely filed a pro se brief.

In the Turner/Finley brief, Attorney Ellis presents the following issues 

for our review:

1. Did the PCRA court abuse its discretion in failing to 

grant relief on [Torres’s] claim that [Attorney 

Weinstein] was ineffective for giving unreasonable 

advice to not testify on his own behalf where [Torres] 

produced evidence that [c]ounsel’s advice was based on 

a hunch that the Commonwealth had not produced 

enough evidence to sustain a guilty verdict?

2. May [Torres] raise the question of [] PCRA counsel’s 

effectiveness for the first time on appeal?

Turner/Finley Brief at 5. In his pro se brief, Torres raises the following 

issue: “Did the PCRA [c]ourt abuse its discretion by failing to grant relief on 

[Torres’s] claim that [Attorney Weinstein] was ineffective for offering 

unreasonable advice to not testify and, in doing so, interfer[ed] with 
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[Torres’s] right to testify on his own behalf?” Pro Se Brief for Appellant at 

7.3 

Before addressing the claims Torres wishes to present on appeal, we 

must determine whether Attorney Ellis complied with the requirements of 

Turner/Finley in petitioning to withdraw as counsel. Pursuant to 

Turner/Finley, independent review of the record by competent counsel is 

required before withdrawal on collateral appeal is permitted. 

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Such 

independent review requires proof of

1) A “no-merit” letter by PCRA counsel detailing the nature and 

extent of his review; 

2) The “no-merit” letter by PCRA counsel listing each issue the 

petitioner wished to have reviewed; 

3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of 

why the petitioner’s issues were meritless; 

4) The [] court conducting its own independent review of the 

record; and 

5) The [] court agreeing with counsel that the petition was 

meritless.

Id. (citation and brackets omitted).

Here, our review of the record discloses that Attorney Ellis has 

complied with each of the above requirements. In addition, Attorney Ellis 

sent Torres copies of the Turner/Finley brief and Petition to Withdraw, and 

advised him of his rights in lieu of representation in the event that the court 

 

3 The Commonwealth did not file a brief on appeal.
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granted Attorney Ellis permission to withdraw, in compliance with

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since 

Attorney Ellis has complied with the Turner/Finley requirements, we will 

proceed with our independent review of the record and the merits of Torres’s 

claims.

This Court examines PCRA appeals in the light most 

favorable to the prevailing party at the PCRA level. Our review 

is limited to the findings of the PCRA court and the evidence of

record. Additionally, we grant great deference to the factual 

findings of the PCRA court[,] and will not disturb those findings 

unless they have no support in the record. In this respect, we 

will not disturb a PCRA court’s ruling if it is supported by 

evidence of record and is free of legal error. However, we afford 

no deference to its legal conclusions. 

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) 

(internal citations, quotation marks and brackets omitted).

Torres argues that Attorney Weinstein rendered ineffective assistance, 

and interfered with Torres’s right to testify in his own defense, by 

unreasonably advising Torres not to testify at trial. Turner/Finley Brief at 

11; Pro Se Brief for Appellant at 18-19.4 Torres alleges that 

[d]uring [pre-trial] preparations, he told [Attorney] Weinstein 

that he wanted to testify .... In response, [Attorney] Weinstein 

told him that his testimony was not necessary .... [] Torres 

remained adamant in his desire to testify on his own behalf, but 

[Attorney] Weinstein told him that he would only do damage to 

the case if he did.

 

4 Since Attorney Ellis’s first issue and Torres’s sole issue are essentially 

identical, we will address them simultaneously. 
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Id. at 18; see also id. (asserting that “Torres felt he had [no] choice but to 

obey his lawyer’s instructions”). Additionally, Torres urges that, “[i]n light of 

the porous explanations [Attorney] Weinstein offered [at the PCRA Hearing] 

for keeping his client off the witness stand, it is much more probable that [] 

Torres’[s] testimony concerning his attorney’s advice was the truth.” Id. at 

21. 

To prevail on a claim of ineffectiveness of counsel, the PCRA petitioner

must demonstrate “(1) that the underlying claim is of arguable merit; (2) 

that counsel’s course of conduct was without a reasonable basis designed to 

effectuate his client’s interest; and (3) that he was prejudiced by counsel’s 

ineffectiveness[.]” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 

2012) (citations omitted). The PCRA court may deny an ineffectiveness 

claim if the petitioner’s evidence fails to meet any of these prongs. 

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010). 

Moreover, a PCRA petitioner bears the burden of demonstrating counsel’s 

ineffectiveness. Id.; see also Commonwealth v. Lesko, 15 A.3d 345, 

380 (Pa. 2011) (stating that “[w]hen evaluating ineffectiveness claims, 

judicial scrutiny of counsel’s performance must be highly deferential.” 

(citation and internal quotation marks omitted)).

The decision to testify on one’s own behalf

is ultimately to be made by the accused after full consultation 

with counsel. In order to support a claim that counsel was 

ineffective for “failing to call the appellant to the stand,” the 

appellant must demonstrate either that (1) counsel interfered 
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with his client’s freedom to testify, or (2) counsel gave specific 

advice so unreasonable as to vitiate a knowing and intelligent 

decision by the client not to testify in his own behalf.

Commonwealth v. O’Bidos, 849 A.2d 243, 250 (Pa. Super. 2004) (citation 

and brackets omitted). “Counsel is not ineffective where counsel’s decision 

to not call the defendant was reasonable.” Commonwealth v. Breisch, 

719 A.2d 352, 354-55 (Pa. Super. 1998). Additionally, regarding the second 

prong of the ineffectiveness test, 

counsel’s assistance is deemed constitutionally effective if he 

chose a particular course of conduct that had some reasonable 

basis designed to effectuate his client’s interests. Where 

matters of strategy and tactics are concerned, a finding that a 

chosen strategy lacked a reasonable basis is not warranted 

unless it can be concluded that an alternative not chosen offered 

a potential for success substantially greater than the course 

actually pursued.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations, 

quotation marks and brackets omitted).

In its Opinion, the PCRA court addressed Torres’s ineffectiveness 

challenge as follows:

[Torres] has failed to establish all three prongs of the 

[ineffectiveness] test[,] and his testimony at the ... PCRA 

Hearing[] lacked credibility.

First, Attorney Weinstein’s testimony indicates his advice 

was both reasonable and logical under the circumstances. 

During the PCRA Hearing, Attorney Weinstein testified that 

[Torres], through an interpreter, informed Attorney Weinstein 

that he shot the victim. PCRA Hr’g Tr. vol. 1, [at] 24 .... 

[Torres] then reneged, but finally admitted to the shooting[,] 

without [an] intent to kill the victim. Id., at 24-25. In addition, 

Attorney Weinstein testified as to evidence involving the tracing 

of cellular telephones[,] which would have contradicted 
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[Torres’s] testimony as to his location at the time of the incident. 

Id., at 25. Based on this information, Attorney Weinstein 

indicated his reluctance to recommend [that Torres] testify on 

his own behalf to avoid solicitation of perjury. Id., at 24. 

Furthermore, Attorney Weinstein testified that he wanted to 

separate [Torres] from his co-defendant[, Joseph Atwell], felt 

that separation would be established by the evidence alone, and 

that [Torres’s] testimony would interfere with that distinction. 

Id., at 26-28. Th[e PCRA c]ourt is convinced [that] Attorney 

Weinstein’s strong recommendation that [Torres] not testify on 

his own behalf was a reasonable and logical trial strategy.

Second, [Torres’s] position that he was denied his right to 

testify on his own behalf lacks credibility. [Torres] testified [at 

the PCRA Hearing that] he did discuss the right to testify with 

Attorney Weinstein []. PCRA Hr’g Tr. vol. 1, 5-8 .... 

[Additionally, Torres executed an] Affidavit dated December 29, 

2012, [which] indicates:

[Attorney] Weinstein initiated a discussion with me, 

advising me that he did not need me to take the stand 

because now the case “looked good for us.” ... The 

defense rested without me taking the stand. It was on 

the basis of that advice that I used my right to remain 

silent and did not testify.

[]Torres Aff. December 29, 2012. This language is a clear 

indication that the decision not to testify on his own behalf was 

made by [Torres,] based upon the advice of Attorney Weinstein. 

Attorney Weinstein’s testimony offered at the PCRA Hearing 

verifies as much. PCRA Hr’g Tr. vol. 1, 22-23 ....

Therefore, ... Attorney Weinstein had both a logical and 

reasonable basis for his recommendations to [Torres,] and th[e 

PCRA c]ourt is not convinced that the result of [Torres’s] trial 

would have been different if [Torres] had testified on his own 

behalf.

PCRA Court Opinion, 6/1/15, at 6-7 (emphasis in original); see also Order, 

3/9/15, at 2 (stating that Attorney Weinstein “is an extremely experienced 

defense attorney with 40 years of criminal [defense] experience, a great 
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deal of knowledge of the law and the legal process, including how to actually 

handle jury trials, and [he has] a full understanding of his responsibility to 

both the client and the Court. Based upon all of that knowledge and 

experience, his advice to [Torres] was both logical and legal[,] and certainly 

qualified as effective assistance of counsel.”).

Our independent review of the record shows that the PCRA court’s 

sound rationale is supported by the record, and we therefor affirm on this 

basis in rejecting Torres’s ineffectiveness challenge regarding Attorney 

Weinstein. See PCRA Court Opinion, 6/1/15, at 6-7; see also Spotz, 

supra.

5

 

Next, to the extent that Attorney Ellis asserts in the Turner/Finley

brief that Torres wishes to challenge Attorney Ellis’s representation at the 

PCRA Hearing, Torres does not argue this claim in his pro se brief. 

Nevertheless, this claim is not ripe for our review because Torres raises it for 

the first time on appeal. See Commonwealth v. Ford, 44 A.3d 1190, 

1200-01 (Pa. Super. 2012) (holding that “issues of PCRA counsel 

effectiveness must be raised in a serial PCRA petition or in response to a 

notice of dismissal before the PCRA court[,]” and “claims of PCRA counsel 

ineffectiveness cannot be raised for the first time after a notice of appeal has 

 

5 Additionally, we decline Torres’s invitation to reassess the PCRA court’s 

credibility determination concerning the testimony presented at the PCRA 

Hearing. See Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) 

(stating that “[t]he PCRA court’s credibility determinations, when supported 

by the record, are binding on this Court[.]”).
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been taken from the underlying PCRA matter.”); see also Commonwealth 

v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011) (stating that “[w]hile difficult, 

the filing of a subsequent timely PCRA petition [alleging ineffectiveness of 

PCRA counsel] is possible, and in situations where a [time bar] exception ... 

can be established[,] a second [PCRA] petition filed beyond the one-year 

time bar may be pursued.”).

Accordingly, because we conclude that the PCRA court neither abused 

its discretion nor committed an error of law in denying Torres’s first 

Amended PCRA Petition, we grant Attorney Ellis’s Petition to Withdraw and

affirm the Order on appeal. 

Petition to Withdraw as counsel granted; Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2016