J-S58024-16

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

JULIO A. BONILLA

Appellant No. 2130 MDA 2015

Appeal from the PCRA Order November 18, 2015

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0000680-2010

BEFORE: GANTMAN, P.J., BOWES, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2016

Julio A. Bonilla appeals from the November 18, 2015 order denying his 

PCRA petition following an evidentiary hearing. After thorough review, we 

affirm.

Appellant was charged with first-degree murder and two counts of 

aggravated assault arising out of a street fight on Willow Street in Lebanon 

City on March 25, 2010. Appellant threatened one victim with a knife and 

fatally stabbed Kenny Echevarria multiple times with that weapon. 

Immediately after the stabbing, he fled to Vineland, New Jersey, and was 

arrested there on March 26, 2010. 
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On December 1, 2010, Appellant entered a negotiated guilty plea to 

the charges and was sentenced to twenty to forty years in prison. 

Thereafter, Appellant filed a PCRA petition. He successfully challenged his 

plea, and his sentence was vacated. Attorney Erin Zimmerer was appointed 

to represent him at a trial. Counsel filed numerous pre-trial motions on 

Appellant’s behalf. Following a four-day trial, where thirty-one witnesses 

testified, the jury found Appellant guilty of all charges and the court 

sentenced him to life imprisonment.1 

Appellant filed post-trial motions, which were denied. He then filed a 

direct appeal to this Court but was denied relief. Commonwealth v. 

Bonilla, 2013 Pa. Super. Unpub. LEXIS 1826 (Pa.Super. 2013). The 

Supreme Court denied allowance of appeal. Commonwealth v. Bonilla, 86 

A.3d 231 (Pa. 2014). Appellant timely filed the instant PCRA petition raising 

multiple claims of trial counsel’s ineffectiveness. The court appointed 

counsel and held an evidentiary hearing on October 29, 2015. Appellant 

testified on his own behalf and, in addition, he presented the testimony of 

three witnesses he characterized as material, but who were not called to 

testify at trial: Emmanuel Ortega, Carmen Irizarry, and Julio Bonilla, Sr. On 

November 18, 2015, the PCRA court denied relief. 

____________________________________________

1 Appellant received a concurrent five to ten year sentence of imprisonment 

on the assault convictions. 
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Appellant timely filed the within appeal and complied with the PCRA 

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

complained of on appeal. The PCRA court authored its Pa.R.A.P. 1925(a) 

opinion, and the matter is ripe for our review. Appellant presents four 

questions:

A. Whether the trial court erred in not finding Appellant’s trial 

counsel ineffective for failing to identify and call material 

witnesses who could have provided exculpatory testimony at 

trial, specifically Emmanuel Ortega, Carmen Irizarry, and Julio 

Bonilla, Sr.

B. Whether the trial court erred in not finding Appellant’s trial 

counsel ineffective for failing to obtain and play the 911 call 

[Appellant] made after the murder at trial.

. . . . 

[C.] Whether the trial court erred in not finding Appellant’s trial 

counsel ineffective for failing to seek suppression of a knife 

and photographs of a [sic] various knives, and failed to 

object to their admission during trial.

. . . . 

[D.] Whether the trial court erred in its decision denying 

Appellant’s Petition for Post-Conviction Relief. 

Appellant’s brief at 4.2

____________________________________________

2

 Appellant withdrew two issues from our consideration that were contained 

in his Pa.R.A.P. 1925(b) statement and listed in his Statement of Questions. 

See Appellant’s brief at 32, 35. 
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When we review the denial of post-conviction relief, we are “limited to 

examining whether the evidence of record supports the court's 

determination and whether its decision is free of legal error." 

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Our 

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

record” and we view the latter “in the light most favorable to the prevailing 

party at the PCRA level.” Commonwealth v. Rykard, 55 A.3d 1177, 1183 

(Pa.Super. 2012). While we will not disturb the factual findings of the PCRA 

court unless they are unsupported, we afford no deference to its legal 

conclusions. “Where the issue is a question of law, our standard of review is 

de novo and our scope of review is plenary.” Commonwealth v. Henkel,

90 A.3d 16, 20 (Pa.Super. 2014). 

In order to prevail, the petitioner must demonstrate: (1) the 

underlying claim is of arguable merit; (2) counsel had no reasonable basis 

for the act or omission in question; and (3) he suffered prejudice as a result 

of counsel's deficient performance. Commonwealth v. Steele, 961 A.2d 

786, 796-97 (Pa. 2008); Commonwealth v. Stewart, 84 A.3d 701, 706 

(Pa.Super. 2013) (en banc). "A claim of ineffectiveness will be denied if the 

petitioner's evidence fails to satisfy any one of these prongs." 

Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013).

The third prong, the prejudice aspect, involves a showing by a 

defendant that but for the act or omission in question, “there is a reasonable 
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probability that the outcome of the proceedings would have been different.” 

Id. at 427; Steele, supra at 360. A "reasonable probability" is "a 

probability sufficient to undermine confidence in the outcome." 

Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super. 2006). 

With regard to the second prong, "Trial counsel . . . is presumed to 

have acted effectively and in his client's best interests[.]” Commonwealth 

v. Hancharik, 633 A.2d 1074, 1079 (Pa. 1993). In determining whether 

counsel had a reasonable basis for the course charted, "[t]he test is not 

whether other alternatives were more reasonable, employing a hindsight 

evaluation of the record,” Commonwealth v. Hawkins, 894 A.2d 716, 730 

(Pa. 2006), "but whether no competent counsel would have chosen that 

particular course of action, or the alternative not selected offered a greater 

chance of success.” Commonwealth v. Colavita, 993 A.2d 874 (Pa. 

2010). This test is an objective one, and counsel is effective if his decision 

had any reasonable basis. Hawkins, supra.

Regarding a claim that counsel was ineffective in failing to investigate 

and call witnesses, a petitioner must demonstrate:

(1)the witness existed; (2) the witness was available; (3) trial 

counsel was informed of the existence of the witness or should 

have known of the witness’ existence; (4) the witness was 

prepared to cooperate and would have testified on appellant’s 

behalf; and (5) the absence of the testimony prejudiced 

appellant.

Commonwealth v. Miller, 868 A.2d 578, 581-82 (Pa.Super. 2005). 
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Appellant alleges that trial counsel was ineffective for failing to 

reasonably investigate and make an informed decision whether to call three 

witnesses, whom Appellant claims could have provided material and 

exculpatory testimony. Appellant maintains that, although he told counsel 

about Emmanuel Ortega3 prior to trial, counsel failed to investigate, contact, 

or interview him, and she had no reasonable strategic basis not to do so. 

Appellant argues that Mr. Ortega’s testimony was beneficial under 

Commonwealth v. Perry, 644 A.2d 705 (Pa. 1994), as it supported his 

claim of self-defense and may have resulted in a lesser degree of homicide. 

Mr. Ortega further testified at the PCRA hearing that he lived with 

Appellant at the time of the fight. He was present the day before the fight 

when the victim threatened to kill Appellant and his family. N.T., 12/16/15, 

at 19. Mr. Ortega further testified that, although he did not witness the 

fight, Appellant entered his car on Willow Street immediately after the fight. 

Mr. Ortega described Appellant as shocked and scared, and Appellant asked 

Mr. Ortega to take him to a friend’s house because he was being threatened. 

Id. at 12. Along the way, Appellant directed Mr. Ortega to stop at a pizza 

place so that Appellant could place a telephone call from a payphone. 

____________________________________________

3 Mr. Ortega was known as Emmanuel Rodriguez-Arroyo, Emmanuel OrtaRodriguez, and Emmanuel Arroyo. Trial counsel’s notes did not contain any 

mention of an Emmanuel and counsel had no recollection of discussing an 

Emmanuel. N.T., 10/29/15, at 92. 
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Following that call, Mr. Ortega dropped off Appellant at a friend’s home, 

picked up Appellant’s family from their Willow Street residence, retrieved 

Appellant, and transported all of them to Appellant’s brother’s house in New 

Jersey. During that trip, they discussed Appellant turning himself in to 

police after he and his family were safe. Mr. Ortega maintained that he did 

not see a knife in Appellant’s possession. 

Mr. Ortega further testified that he was not contacted by trial counsel, 

but he would have been available to provide testimony at trial. He denied 

any familial relationship with Appellant and represented that he did not 

remain in contact with him after the murder. On cross-examination, Mr. 

Ortega admitted that Appellant is his sister’s unofficial husband and the 

father of her children. Id. at 22. Despite the fact that Appellant told police 

that he threw the knife from the car window into a river on the way to New 

Jersey, Mr. Ortega stated he did not see Appellant throw anything out of the 

window and denied that he stopped the vehicle for that purpose. Upon his 

return from New Jersey, Mr. Ortega retrieved his clothing and went to 

Rochester.

The PCRA court did not find Mr. Ortega credible or his testimony 

exculpatory. Furthermore, it found Mr. Ortega’s account of the trip to New 

Jersey inconsistent with Appellant’s statement to police that he threw the 

knife into the river during that trip. In addition, the court credited Attorney 
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Zimmerer’s testimony that she did not investigate Mr. Ortega because she 

was not apprised of his existence. 

Appellant maintains that counsel knew of Mr. Ortega, but failed to 

locate him. Furthermore, he contends that Mr. Ortega’s testimony was not 

internally inconsistent and did not contradict Appellant’s testimony. 

Appellant argues that Mr. Ortega’ s testimony would have been exculpatory 

or mitigating as it would have supported his claim that he acted in selfdefense and fled in fear. 

We cannot disturb the court’s credibility determination. Furthermore, 

we agree with the PCRA court that the witness’s testimony had little 

evidentiary value as the jury heard from Detective Walton that Appellant told 

him he fled the state in fear of retaliation. N.T. Trial, 4/11/12, at 76. 

Additionally, Appellant’s sister Amarylis and his wife Sacha testified at trial 

that there were issues between Appellant and the victim in the days leading 

up to the fight and murder, and that the victim had threatened to kill 

Appellant. Id. at 128. Both of the women related that the victim and others 

attacked Appellant on the date in question. Id. at 111, 114. Appellant’s 

wife testified that, after the stabbing, Appellant was nervous, upset, and 

crying. Id. at 130. Thus, Mr. Ortega’s testimony, to the limited extent it 

was probative of the issue of self-defense, was cumulative of other 

testimony. Finally, the PCRA court credited Attorney Zimmerer’s testimony 

that she was not apprised of Mr. Ortega. No relief is due. 
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Appellant alleges next that trial counsel was ineffective in failing to 

communicate with Carmen Irizarry. Appellant points to Ms. Irizarry’s 

cooperation with his subpoena for the PCRA hearing as evidence that, had 

the witness been subpoenaed for trial, she would have cooperated and 

offered consistent testimony. Furthermore, he contends that Ms. Irizarry’s 

testimony, if believed, would have bolstered his self-defense argument and, 

as in Perry, supra, would have supported a conviction of a lesser degree of 

homicide. 

Ms. Irizarry was sitting with Norma Ortiz and Marie on Norma’s front

porch near the location of the fight.4 She heard but did not see the fight. 

She testified that she recognized Appellant’s voice crying for help three 

times and she detected fear in his voice. Id. at 40. Ms. Irizarry originally 

testified that no one contacted her about being a witness at trial. She 

subsequently changed her testimony and admitted that she did speak to 

someone regarding the events that night. She also added that she received 

a call from an attorney who left a message. Id. at 41-42. When asked 

whether she would have been available to testify at the April 2012 trial, Ms. 

____________________________________________

4 Norma Ortiz testified on behalf of the defense at trial. Ms. Ortiz stated that 

she saw four or five guys hitting the defendant with their fists while he was 

on the ground and she heard screaming. N.T. Trial, 4/11/12, at 62, 71. On 

cross-examination, she confirmed that Carmen Irizarry was a good friend of 

Appellant, and that an investigator working on behalf of the defense 

interviewed all three women at Ms. Irizarry’s home regarding their 

observations of the fight. Id. at 64, 71. 
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Irizarry answered in the negative as she had undergone an operation at the 

time. She ultimately acknowledged that, had she been subpoenaed by 

Appellant, she would not have appeared due to her surgery. She 

remembered having her daughter notify the court that she could not appear 

at trial, although she did not recollect receiving any notice to appear. 

Trial counsel Zimmerer testified that the defense spoke with Ms. 

Irizarry, but the woman was not willing or able to testify at trial as she had 

just undergone surgery. Id. at 94. Moreover, according to counsel, the 

witness told her that she did not remember anything from that night, and 

her daughter called counsel to reinforce that representation. Id. 

Based upon the testimony of Attorney Zimmerer and Ms. Irizarry, the 

PCRA court concluded the witness was not willing and able to testify at the 

time of the trial. Furthermore, the court found Ms. Irizarry to be wellmeaning but confused, and that her “marginally relevant” testimony would 

not have had any impact on the trial. PCRA Court Opinion, 11/18/15, at 9. 

Again, we find ample support in the record for the trial court’s findings, and 

Appellant is not entitled to relief on this basis. 

Julio Bonilla, Sr., Appellant’s father, was in Puerto Rico at the time of 

the murder. He testified that his son telephoned him from New Jersey, 

reported what had happened, and that he was “crying, screaming.” N.T., 

11/29/15, at 47. His son related that “a situation had occurred . . . and he 

wanted to do everything correct and that they were trying to kill him and his 
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children and that he was really scared.” Id. Appellant did not mention to 

his father that someone had been killed. Mr. Bonilla advised his son to get 

an attorney and turn himself over to police. He testified further that he 

provided counsel with Mr. Ortega’s name and contact information. Id. at 

52. Mr. Bonilla was sequestered in the hallway during trial, ready and willing 

to testify. 

Counsel had a vague recollection that Mr. Bonilla was available and 

willing to testify, and that he was sequestered, but she did not call him to 

provide testimony as his story was inconsequential and had the potential to 

conflict with the testimony of another witness. The PCRA court agreed with 

counsel that, even assuming Mr. Bonilla’s testimony would have been 

admitted over a hearsay objection, it was of little or no probative value, and 

thus, counsel was not ineffective in opting not to call him. 

We agree that Appellant failed to demonstrate the prejudice required 

to satisfy the third prong of the ineffectiveness test. Furthermore, the 

record supports a finding that trial counsel made a reasonable strategic 

decision not to call Mr. Bonilla as a witness. We find no basis for finding 

counsel ineffective. 

Next, Appellant contends that counsel was ineffective in failing to 

obtain and play for the jury the 911 call that he made after the murder. 

Appellant argues that his sister, his wife, his mother and father were in the 

courthouse and could have identified his voice. Furthermore, he submits 
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that, due to the timing of the call, just moments after the event, together 

with the stress and fear in his voice, the jury would have overlooked the fact 

that he did not identify himself or his victim. Appellant analogizes such 

evidence to that of character witnesses in Commonwealth v. Weiss, 606 

A.2d 439, 443 (Pa. 1992). 

Mr. Bonilla and trial counsel both confirmed that counsel was in 

possession of the 911 tape prior to trial. N.T., 11/29/15, at 71. In addition 

to potential authentication issues, counsel testified that she made a strategic 

decision not to play the tape because she believed Appellant’s refusal to 

identify himself or the victim, together with the fact that he hung up on the 

911 operator, was incriminating. Id. Counsel believed the best use of the 

evidence was letting the jury know that Appellant voluntarily made the 911 

call without having to play it, a strategy counsel deemed the “best of both 

worlds.” PCRA Court Opinion, 11/18/15, at 12. The PCRA court saw no 

basis to impugn counsel’s strategic decision, and furthermore, characterized 

it as “totally correct” and expressed its agreement that playing the 911 call 

would have been harmful. Id. 

We concur that counsel’s decision not to play the 911 call for the jury 

was a reasonable one, a strategy other competent counsel may have 

employed in similar circumstances. Furthermore, Appellant cannot 

demonstrate any prejudice as the jury was apprised that he made the call 

and reported the stabbing, which was the positive aspect of the evidence, 
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without the downside of proof of his refusal to identify himself. This claim is 

meritless.

Next Appellant alleges that the trial court erred in not finding counsel 

ineffective for failing to seek suppression of a knife and photographs of 

knives, and failing to object to their admission at trial. Appellant argues the 

admission of photographs of multiple knives in his home was prejudicial, as 

it “allowed the inference to be presented to the jury that Appellant was 

prepared for somebody to come after him, which significantly impairs his 

self-defense argument.” Appellant’s brief at 34. Moreover, he claims that 

counsel had no reasonable basis for failing to object. 

Counsel testified that she did not believe the photographs of knives, 

many of them common kitchen knives, were probative or prejudicial as the 

evidence established that the knives had been tested and ruled out as the 

murder weapon. Furthermore, the jury was aware that the knife that was 

introduced into evidence was not the murder weapon. The PCRA court 

concluded that any prejudice from their admission was outweighed by the 

fact that the exhibits merely confirmed that “everyone has multiple knives in 

their houses.” PCRA Court Opinion, 11/18/15, at 13. We agree, and find no 

prejudice. 

Appellant’s final claim is that the PCRA court erred in denying his PCRA 

petition. In support of this contention, Appellant argues that he was 

prejudiced by the cumulative effect of counsel’s various failings. He cites 
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Commonwealth v. Mason, 130 A.3d 601, 674 (Pa. 2015), in support of his 

contention that prejudice should be premised upon the cumulative effect of 

trial counsel’s multiple deficiencies. However, the law is to the contrary. 

Herein, as in Mason, where all of Appellant's ineffectiveness claims were 

found meritless, “no cumulative prejudicial effect could have attained.” Id.

(quoting Commonwealth v. Thomas, 44 A.3d 12, 25 (Pa. 2012)). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016