J-S01044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

HENRY ZABALA-ZORILLA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 841 MDA 2016

Appeal from the PCRA Order May 17, 2016

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0002404-2012, 

CP-06-CR-0003321-2012

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

HENRY MIGUEL ZABALA-ZORILLA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 842 MDA 2016

Appeal from the PCRA Order May 16, 2016

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0002404-2012

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 01, 2018

Appellant, Henry Miguel Zabala-Zorilla,1 appeals from the order 

entered in the Berks County Court of Common Pleas, which dismissed his 

____________________________________________

1 Appellant’s name appears throughout the certified records as either Henry 

Miguel Zabala-Zorilla or Henry Zabala-Zorilla. 
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first petition filed under the Post Conviction Relief Act (“PCRA”), at 42 

Pa.C.S.A. §§ 9541-9546. We affirm. 

We summarize the relevant facts and procedural history of these cases 

as follows. At several docket numbers, the Commonwealth charged 

Appellant with multiple sex offenses and related crimes against multiple 

victims. Under some pretext or another, Appellant eventually took each 

victim back to his residence, where he held his victim against her will and 

sexually violated her. A jury convicted Appellant of numerous offenses, 

including multiple counts of kidnapping and rape. The court sentenced 

Appellant on May 3, 2013, to an aggregate term of 841⁄2 to 169 years’ 

incarceration. New counsel represented Appellant to file post-sentence 

motions, which the court denied on May 14, 2013. This Court affirmed the 

judgment of sentence on March 25, 2014, and our Supreme Court denied 

allowance of appeal on October 15, 2014. See Commonwealth v. ZabalaZorilla, 100 A.3d 318 (Pa.Super. 2014), appeal denied, 631 Pa. 719, 110 

A.3d 997 (2014). Appellant sought no further direct review, so the 

judgment of sentence became final on January 13, 2015, upon expiration of 

the 90 days to seek review with the U.S. Supreme Court. See U.S.Sup.Ct.R. 

13. 

Still represented by post-sentence/direct appeal counsel, Appellant 

timely filed a counseled first PCRA petition on October 8, 2015. The court 

issued notice of its intent to dismiss the petition without a hearing per 
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Pa.R.Crim.P. 907, on January 20, 2016.2 On May 17, 2016, the PCRA court 

denied the petition. Appellant pro se filed timely notices of appeal at each 

docket on May 23, 2016. On June 6, 2016, the court ordered Appellant to 

file concise statements of errors complained of on appeal at each docket 

number, which Appellant filed through counsel on June 10, 2016. This 

Court consolidated the appeals the same day. 

On August 1, 2016, Appellant filed a petition in this Court to proceed 

pro se; this Court remanded the matter on August 4, 2016, for a Grazier3

hearing that took place on September 13, 2016. On November 23, 2016, 

the PCRA court granted both counsel’s application to withdraw and 

Appellant’s request to proceed pro se on appeal. On January 24, 2017, 

Appellant filed in this Court an application for appointment of counsel, which 

this Court denied as moot on February 8, 2017. Between February and May, 

Appellant requested several extensions of time to file his brief, which this 

Court granted. In the last request, Appellant asked for the appointment of a 

____________________________________________

2

In response to Rule 907 notice, Appellant did not challenge the assistance 

of PCRA counsel on any grounds, such as identifying issues Appellant wanted 

to raise, which counsel did not raise in the petition. So, Appellant has 

waived any claims of ineffective assistance of PCRA counsel Appellant might 

have or suggest because he cannot raise them for the first time on this 

appeal. See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 n. 

14 (2011); Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 894 n. 

12 (2010); Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) (en 

banc), appeal denied, 627 Pa. 771, 101 A.3d 785 (2014). Therefore, current 

counsel was limited to briefing the only issue properly preserved for appeal. 

3 Commonwealth v. Grazier, 552 Pa. 9, 12-13, 713 A.2d 81, 82 (1998).
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Spanish-speaking attorney, based on Appellant’s assertion that he did not 

understand the prior Grazier colloquy. This Court remanded for another 

Grazier hearing that took place on June 5, 2017, after which the court 

appointed new counsel to assist Appellant in his appeals. On July 5, 2017, 

Appellant filed a pro se praecipe to withdraw his appeal, which this Court 

forwarded to newly-appointed counsel. On July 6, 2017, newly-appointed 

counsel requested an extension of 90 days from July 18, 2017, to file a brief 

in this case, so he could familiarize himself with the file, communicate with 

Appellant via an interpreter, and research the relevant issues, while 

balancing the needs of his other court-appointed clients. This Court granted 

the application and extended Appellant’s brief due date to October 16, 2017. 

Counsel sought another extension of time on October 13, 2017, which this 

Court granted until November 15, 2017. 

On or about November 13, 2017, Appellant filed in this Court a pro se

motion for substitution of counsel, claiming current counsel (1) failed to 

fulfill his duty to represent Appellant adequately and conduct a preliminary 

investigation of the record and facts of the case to determine prior counsel’s 

ineffectiveness; (2) sought two extensions of time to file a brief on 

Appellant’s behalf without “good cause” indicating “mere sloth and 

incompetence”; and (3) failed to utilize the appointed interpreter. Appellant 

sought an order from this Court that (a) compelled the appointment of a 

Spanish-speaking attorney to review all prior proceedings to ensure there 
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was no defaulting of relevant claims and (b) retained jurisdiction over the 

PCRA proceedings. Counsel filed an appellate brief on Appellant’s behalf and 

later he filed a court-ordered response to Appellant’s pro se motion on 

December 12, 2017. In the response to Appellant’s motion, counsel denied 

Appellant’s accusations; explained again the reasons for his two requests for 

extensions of time to file a brief, which this Court had already granted; 

informed this Court that a Spanish-speaking attorney was unavailable or had 

declined representation of Appellant, thus the PCRA court retained an 

interpreter; all letters Appellant sent to current counsel, except the first, 

were written in standard English only; and Appellant at no time ever 

indicated that he was unable to understand counsel’s letters. For these 

reasons, counsel averred that Appellant’s purported language barriers do not 

exist with respect to written communications, which belies any claim that 

Appellant’s PCRA rights were compromised because of a language barrier. 

Given the timely filed brief advocating on Appellant’s behalf, counsel 

concluded he has fulfilled his duty to provide Appellant with adequate 

representation on this appeal. The Commonwealth filed its brief on 

December 18, 2017. Appellant’s motion was then deferred for disposition to 

the panel assigned to the case. 

Initially, regarding Appellant’s motion for substitution of counsel, the 

Pennsylvania Supreme Court’s decision in Jette, supra wholly abrogated the 

procedure previously followed under Commonwealth v. Battle, 879 A.2d 
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266 (Pa.Super. 2005), when an appellant filed a pro se motion for 

appointment of new counsel during the pendency of a counseled appeal; 

Jette also clarified the process for a defendant to pursue claims of 

ineffective assistance of appellate counsel in the context of post-conviction 

collateral proceedings: 

[A]bsent a motion for change of counsel, where the 

appellant can demonstrate he has an irreconcilable 

difference with counsel that precludes counsel from 

representing him, or perhaps a timely petition for selfrepresentation, or the retention of private counsel, the 

appellant must remain with appointed counsel through the 

conclusion of the appeal. 

Jette, supra at ___, 23 A.3d at 1042 (internal citation omitted). “[T]he 

proper response to any pro se pleading is to refer the pleading to counsel, 

and to take no further action on the pro se pleading unless counsel forwards 

a motion. Moreover, once the brief has been filed, any right to insist upon 

self-representation has expired.” Id. at ___, 23 A.3d at 1044. Consistent 

with the Majority’s position, Chief Justice Castille wrote:

[T]he decision to proceed with counsel, once made, should 

not include reservation of a veto power and a power to 

change one’s mind concerning counsel, after counsel has 

already been put to the task. The procedure inverts the 

attorney-client relationship. Just as defendants have no 

“right” to taxpayer-financed counsel of their choice, I see 

no reason in law or logic to assume they have a right to 

dictate the issues to be pursued on collateral appeal (or 

direct appeal for that matter), once counsel is appointed. 

The proper repository for complaints concerning counsel is 

the PCRA, and not a cumbersome process once the case is 

already on appeal and briefed. 

Id. at ___, 23 A.3d at 1047 (Chief Justice Castille, Concurring). 
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Significantly, “an indigent criminal defendant does not enjoy the unbridled 

right to be represented by counsel of his own choosing.” Id. at ___, 23 

A.3d at 1041. See also Commonwealth v. Albrecht, 554 Pa. 31, 63, 720 

A.2d 693, 709 (1998); Commonwealth v. Tighe, ___ A.3d ___, 2018 PA 

Super 86 *13 (filed April 12, 2018) (stating same). 

Instantly, Appellant filed a motion for substitution of counsel, on 

November 13, 2017, just days before counsel filed an advocate’s brief for

Appellant. The timing of Appellant’s motion alone, however, cannot be 

dispositive. See Jette, supra. Appellant’s motion makes clear he is 

primarily dissatisfied with current counsel’s delay in filing a brief and the 

failure of the PCRA court to appoint for him a Spanish-speaking attorney. 

This Court forwarded Appellant’s motion to counsel, ordered counsel to 

respond, and counsel complied, concluding he had not defaulted on 

Appellant’s appeal and Appellant’s request for substitution of counsel lacked 

merit for various reasons. Appellant’s purported complaints about current 

counsel were not based on irreconcilable differences; Appellant merely 

disputed counsel’s appellate strategy. 

Moreover, the appellate record makes clear that Appellant is largely 

responsible for the delay in his appeal. Between August 2016 and July 

2017, Appellant asked to proceed pro se and gained a remand for a Grazier

hearing, after which he proceeded pro se. During his pro se period, he 

sought several extensions of time to file his brief. Appellant then changed 
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his mind and demanded appointment of a Spanish-speaking attorney, and 

obtained a second remand for a second Grazier hearing, after which the 

court appointed current counsel and an interpreter, because no Spanishspeaking attorney was available. So, a majority of the delay in resolving 

this appeal is directly attributable to Appellant. 

Once the PCRA court appointed current counsel, counsel sought only 

two extensions of time to file a brief, which this Court deemed good faith 

requests and granted. After counsel filed the appellate brief, Appellant 

indicated no dissatisfaction with the brief or specific factual allegations which 

if true would establish current counsel as ineffective. Consistent with 

prevailing law, we refuse to remand the case again on the grounds alleged. 

Instead, we deny Appellant’s open motion for substitution of counsel and 

require Appellant to remain with current counsel, now that the briefs are 

filed, to avoid further and unnecessary “disruption of the orderly disposition” 

of this appeal. See Albrecht, supra. Accordingly, we will address the one 

issue properly preserved in Appellant’s counseled PCRA petition, which the 

PCRA court addressed and current counsel briefed for this appeal: 

DID THE PCRA COURT ERR IN DENYING POSTCONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING 

WHERE THE PCRA PETITION ALLEGED THAT TWO

WITNESSES WERE AVAILABLE AND KNOWN TO TRIAL 

COUNSEL BUT WERE NOT CALLED TO TESTIFY AT TRIAL 

AND THAT THE TWO WITNESSES WERE PRESENT AT THE 

RESIDENCE WHERE THE ALLEGED SEXUAL ASSAULT 

OCCURRED?

(Appellant’s Brief at 4). Although raised under both docket numbers, the 
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record makes clear this issue refers solely to the victim, M.C., in the case 

prosecuted at Docket No. 2404-2012. 

Appellant argues M.C., the victim in the case prosecuted at Docket No. 

2404-2012, testified that she screamed for help during her ordeal involving 

Appellant. Regardless of whether her screams were muffled or she was 

choked, Appellant maintains the screams would have been heard by his 

housemate, Leonor Rogaluna, or by his son, Henry Zabala-Zorilla, Jr., both 

of whom were in the house. Appellant insists his claim that his housemate 

and his son heard no screams is viable. Appellant contends defense counsel 

was informed of these two potential witnesses. Appellant insists both were

prepared to cooperate and testify for Appellant at trial. Because the issue 

for the jury at trial was one of credibility, Appellant submits defense counsel

was ineffective for failing to call these witnesses on Appellant’s behalf; 

counsel’s decision resulted in prejudice to Appellant and denied him a fair 

trial. Appellant concludes he is entitled to a hearing, where the PCRA court 

can weigh trial counsel’s testimony that Appellant’s son was unavailable for 

trial against Appellant’s son’s testimony that he was. For the following 

reasons, we disagree. 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 
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612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the 

findings of the PCRA court if the record contains any support for those 

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal 

denied, 593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a 

PCRA hearing as a matter of right; the PCRA court can decline to hold a 

hearing if there is no genuine issue concerning any material fact, the 

petitioner is not entitled to PCRA relief, and no purpose would be served by 

any further proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701 

A.2d 541 (1997); Commonwealth v. Taylor, 933 A.2d 1035, 1040 

(Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008); 

Pa.R.Crim.P. 907(1). “A reviewing court on appeal must examine each of 

the issues raised in the PCRA petition in light of the record in order to 

determine whether the PCRA court erred in concluding that there were no 

genuine issues of material fact and in denying relief without an evidentiary

hearing.” Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 

2015), appeal denied, 635 Pa. 763, 136 A.3d 981 (2016) (quoting 

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa.Super. 2007), 

appeal denied, 594 Pa. 685, 934 A.2d 72 (2007)). 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When 

asserting a claim of ineffective assistance of counsel, a petitioner is required 

to make the following showing: (1) the underlying claim is of arguable merit; 
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(2) counsel had no reasonable strategic basis for his action or inaction; and, 

(3) but for the errors and omissions of counsel, there is a reasonable 

probability that the outcome of the proceedings would have been different. 

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). 

The failure to satisfy any prong of the test for ineffectiveness of counsel will 

cause the claim to fail. Williams, supra.

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit....” Commonwealth 

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot 

be found ineffective for failing to pursue a baseless or meritless claim.” 

Taylor, supra at 1042 (quoting Commonwealth v. Poplawski, 852 A.2d 

323, 327 (Pa.Super. 2004)).

Once this threshold is met we apply the “reasonable basis” 

test to determine whether counsel’s chosen course was 

designed to effectuate his client’s interests. If we conclude 

that the particular course chosen by counsel had some 

reasonable basis, our inquiry ceases and counsel’s 

assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [a defendant] demonstrates

that counsel’s chosen course of action had an adverse

effect on the outcome of the proceedings. The defendant

must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome. In [Kimball, supra], we held 

that a “criminal defendant alleging prejudice must show 
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that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 

(2002) (some internal citations and quotation marks omitted). “The 

petitioner bears the burden of proving all three prongs of the test.” Id. 

“Where it is clear that a petitioner has failed to meet any of the three, 

distinct prongs of the...test, the claim may be disposed of on that basis 

alone, without a determination of whether the other two prongs have been 

met.” Commonwealth v. Basemore, 560 Pa. 258, 295, 744 A.2d 717, 

738 n.23 (2000). 

A petitioner’s claim that counsel was ineffective, for failing to call a 

particular witness at trial, requires certain proof: 

[T]he [petitioner] must show: (1) that the witness existed; 

(2) that the witness was available; (3) that counsel was 

informed of the existence of the witness or should have 

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

prepared to cooperate and would have testified on 

[petitioner’s] behalf; and (5) that the absence of the 

testimony prejudiced [petitioner]. 

Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa.Super. 2013). 

Significantly, a court shall not find trial counsel ineffective for failure to call a 

witness unless the petitioner shows how the uncalled witness’ testimony 

would have been beneficial under the circumstances of the petitioner’s case. 

Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110, 1134 

(2008); Commonwealth v. Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319 

(1996). Trial counsel’s failure to call a witness does not constitute arguable 
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merit without some showing that the testimony of the absent witness would 

have been valuable to the asserted defense. Commonwealth v. Durst, 

522 Pa. 2, 6, 559 A.2d 504, 506 (1989). In this context, the petitioner must 

establish prejudice by demonstrating that he was denied a fair trial due to

the absence of the testimony of the proposed witness. Commonwealth v. 

O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal denied, 580 Pa. 696, 

860 A.2d 123 (2004). 

“Where a petitioner requests an evidentiary hearing, the petition shall 

include a signed certification as to each intended witness stating the 

witness’s name, address, date of birth and substance of testimony and shall 

include any documents material to that witness’s testimony. Failure to 

substantially comply with the requirements of this paragraph shall render 

the proposed witness’s testimony inadmissible.” 42 Pa.C.S.A. § 9545(d)(1). 

See also Pa.R.Crim.P. 902(A)(15). “[T]he certification requirement can be 

met by an attorney or pro se petitioner certifying what the witness will 

testify regarding”; the certification requirement can also be met by the 

proposed witness or the witness’ attorney. Commonwealth v. Pander, 

100 A.3d 626, 640-41 (Pa.Super. 2014) (en banc), appeal denied, 631 Pa. 

712, 109 A.3d 679 (2015). The content of the certification must comply 

with Section 9545(d)(1) and include an accurate summary of the missing 

witness testimony, to the best of the certifier’s knowledge. Id. 

Instantly, Appellant filed a counseled first PCRA petition in which he 
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asserted ineffective assistance of trial counsel for failing to call Leonor 

Rogaluna and Henry Zabala-Zorilla, Jr. at trial as witnesses for the defense. 

The certification attached to Appellant’s petition in relevant part stated:

That at the time of the evidentiary hearing, Petitioner 

intends to call Leonor Rogaluna to testify. Leonor Rogaluna 

will testify that she and Roberto Antonio Castro were 

renting a room inside the residence located at 1552 N. 

10th Street, Reading, PA. Leonor Rogaluna will testify that 

she was paying rent to the Petitioner in order to live at the

aforementioned residence and resided there for 

approximately 6 months during 2011. Leonor Rogaluna 

will testify that she was present when the Reading Police 

conducted a search of the residence following allegations 

made by [M.C.]. Leonor Rogaluna will testify that she 

spoke with the police on the date of the initial search,

provided her biographical information and was present 

during several other times when the police came back to 

take pictures or collect evidence. Leonor Rogaluna will 

testify that on one occasion during the time frame of 

[M.C.’s] complaint, she observed a woman with clean hair 

go inside the Petitioner’s bedroom with the Petitioner. 

Leonor Rogaluna will testify that she and Roberto Antonio 

Colon are always home by 8 pm. and watch TV until the 

late hours of the evening. Leonor Rogaluna will testify that 

at no time while living at 1552 N. 10th Street, Reading, PA 

did she hear a woman screaming for help. Leonor 

Rogaluna will testify that she was willing and available to 

testify at trial. Leonor Rogaluna will testify that she 

appeared at the Petitioner’s sentencing hearing at the 

request of the Petitioner’s mother because the Petitioner’s 

attorney never contacted her about coming in to testify at 

trial. 

That at the time of the requested evidentiary hearing in 

this matter, Petitioner intends to call Henry Zabala-Zorilla, 

Jr. [who] will testify that he was present inside 1552 N. 

10th Street, Reading, PA at the time the Petitioner brought 

[M.C.] to the home. Henry Zabala-Zorilla, Jr. will testify 

that he heard his father having sex with [M.C.] and at no 

time that evening did he hear [M.C.] screaming for help. 

Henry Zabala-Zorilla, Jr. provided this information to the 
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Petitioner’s counsel prior to trial and was available to 

testify at the trial. Henry Zabala-Zorilla, Jr. spoke with 

Petitioner’s counsel several times prior to trial and will 

testify that none of his contact information changed prior 

to trial. Henry Zabala-Zorilla, Jr. was present at the time 

of sentencing because he was never contacted to testify at 

trial and wanted the trial court to hear the information he 

would have testified to at trial if called as a witness. 

(Certification of Intended Witnesses, attached to Appellant’s PCRA Petition, 

filed 10/8/15). The Commonwealth answered that Appellant’s son was 

unavailable as a witness at trial because his family and defense counsel 

could not locate him; and Ms. Rogaluna’s proposed testimony was so vague 

that it would not have changed the outcome of the trial. 

In response to Appellant’s issue, the PCRA court stated:

The record...reflects that trial counsel did not call Henry 

Zabala-Zorilla, Jr. to testify because his family could not 

locate him. Accordingly, it is clear that that particular 

witness was not available and/or willing to cooperate. 

With regard to Ms. Rogaluna, this court agrees with the 

Commonwealth’s assessment that her description of a 

“women with clean hair” is so vague that it is impossible to 

determine whether she is referring to one of the...victims in 

this case or some other woman. Moreover, given the 

overwhelming evidence of the [petitioner’s] guilt, while 

taking into consideration the fact that the uncorroborated 

testimony of a rape victim is sufficient to support a rape 

conviction, we are unable to see how the [petitioner] could 

prove that Ms. Rogaluna’s testimony was necessary to 

avoid prejudice. 

(Order and Notice of Intent to Dismiss, filed January 20, 2016, at 5-6, 

attached as Exhibit A to PCRA Court Opinion, filed June 27, 2016). 

Here, trial counsel told the court at sentencing that she could not 

present Henry Zabala-Zorilla, Jr. at trial because neither he nor his family 
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made him available for trial. Trial counsel told the court that the family did 

not produce him, she could not locate him, and the Commonwealth was 

unable to find him, despite efforts by the District Attorney’s office, who 

wanted to call him as a witness for the prosecution. (See N.T. Sentencing, 

5/3/13, at 20.) Importantly, the certification of Henry Zabala-Zorilla, Jr. 

does not say he was prepared and willing to testify at trial on Appellant’s 

behalf. See Michaud, supra. 

Further, Henry Zabala-Zorilla, Jr.’s certification states he “was present 

at the time of sentencing because he was never contacted to testify at trial 

and wanted the trial court to hear the information he would have testified to 

at trial if called as a witness.” (See Certification of Intended Witnesses, 

attached to Appellant’s PCRA Petition, filed 10/8/15.) After trial counsel told 

the court at sentencing about Henry Zabala-Zorilla, Jr.’s unavailability at 

trial, the court allowed him to testify for Appellant. At no time did Henry 

Zabala-Zorilla, Jr. explain his absence from trial or contradict counsel’s prior 

representation to the court. (See N.T. Sentencing at 21-22.) The record 

contains no evidence that Henry Zabala-Zorilla, Jr. was even on hand to 

support his father during the trial, despite the witness’ opportunity to say so 

at the sentencing hearing. Nothing in his certification precludes or explains 

Henry Zabala-Zorilla, Jr.’s nonappearance during Appellant’s trial. Because 

the record shows this proposed witness was unavailable at trial, defense 

counsel cannot be deemed ineffective for failing to present his testimony. 
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Likewise, the proposed testimony of Ms. Rogaluna was not genuinely 

exculpatory. Trial counsel told the court at the sentencing hearing that she 

knew about the older couple who lived in the house, but she did not think 

their testimony would be helpful because they saw nothing to rebut any of 

the allegations against Appellant. (See N.T. Sentencing at 20.) The 

certification for Ms. Rogaluna’s proposed testimony offered a description of a 

“woman with clean hair” going into Appellant’s bedroom. The description is 

so lacking in detail that it cannot represent M.C. with any certainty. Further, 

Ms. Rogaluna certified that she heard no screaming but she also did not hear 

the police make forcible entry into the home, after knocking and 

announcing, to execute a search warrant. According to the trial testimony, 

she appeared very surprised to encounter the police on the third floor where 

she lived. The victim also testified at trial that the person in the room next 

to Appellant’s turned up the volume on the television in that room. Thus, 

trial counsel assessed this testimony would not have contributed to the 

defense. Given the other evidence against Appellant, we cannot say with 

confidence that the verdict would have been different with the testimony of 

these proposed witnesses. 

Ordinarily, counsel’s decision not to present witnesses would be 

considered a matter of trial strategy, and challenges to trial strategy often 

invoke questions of counsel’s rationale behind the chosen tactic, which in 

turn can require an evidentiary hearing on the reasonableness of counsel’s 
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actions under the circumstances. See Commonwealth v. Cousar, 638 Pa. 

171, 191-92, 154 A.3d 287, 299 (2017) (expressing preference for 

evidentiary hearing on reasonableness of counsel’s actions or inactions 

before deciding that counsel’s strategy was, in fact, reasonable). 

Nevertheless, the PCRA court did not require another hearing in this case 

because the court had the benefit of counsel’s rationale at the sentencing

hearing. Further, any testimony from a third party concerning the fact of 

the victim’s presence in the house had little or no evidentiary value for the 

defense because it would confirm only that the victim was there with 

Appellant. Based on the foregoing, Appellant failed to meet his burden to 

plead and prove his defense counsel was ineffective on the grounds alleged. 

Given the record in this case, Appellant’s claim lacked arguable merit and 

therefore warranted no relief. Accordingly, we affirm.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/01/18