J-S42013-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MIGUEL RODRIGUEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 786 EDA 2020

Appeal from the PCRA Order Entered January 24, 2020

In the Court of Common Pleas of Northampton County 

Criminal Division at No(s): CP-48-CR-0003835-2014

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 13, 2020

Miguel Rodriguez appeals from the January 24, 2020 order entered in 

the Northampton County Court of Common Pleas, which dismissed his first 

and timely petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 

see 42 Pa.C.S.A. §§ 9541-9546, following an evidentiary hearing. On appeal, 

Rodriguez raises two claims of ineffectiveness of trial counsel. After our 

thorough review of the record, we find that Rodriguez has failed to 

demonstrate any examples of ineffectiveness and therefore affirm.

Preliminarily, we note that the factual history of this case is laid out 

extensively in Rodriguez’s direct appeal. See Commonwealth v. Rodriguez, 

174 A.3d 1130 (Pa. Super. 2017). Briefly, after a heated argument between 

several participants, shots were fired at a bar in Easton, Pennsylvania. The 

gunfire struck the victim, who died from his wounds, despite receiving aid 

from at least one police officer and the victim’s subsequent transport to a local 
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hospital. Upon arriving at the scene, police found, among other items, a 

broken cell phone, a bag of marijuana, bullets, bullet fragments, and shell 

casings near the victim. The cell phone and marijuana bag featured 

Rodriguez’s DNA.

The Commonwealth empaneled a grand jury. Rodriguez testified at the 

grand jury and stated: 1) he was at the bar, unarmed, on the night of the 

homicide with two friends; 2) he utilized two cell phones at the time, but gave 

one on that night to another person to use for drug transactions; 3) he never 

approached the location inside of the bar where the shooting actually 

occurred; and 4) he left the bar prior to hearing any gunshots and traveled to 

his girlfriend’s house nearby.

At trial, one witness, a bouncer at the bar, testified that he saw 

Rodriguez brandish a gun. The bouncer stated that he heard three gunshots 

as he fled from the fracas. Additionally, a bartender who was working at the 

bar on the date of the shooting and who was also at one point a paramour of 

Rodriguez’s friend provided her recollection of events. Her testimony followed 

having been stabbed ten times by Rodriguez’s “acquaintances” several months 

after the homicide in this case, but prior to trial.

Ultimately, a jury found Rodriguez guilty of first-degree murder, and the 

trial court sentenced to a term of life imprisonment without the possibility of 

parole. After the trial court denied his post-sentence motions, Rodriguez 

appealed to our Court. We affirmed the trial court’s judgment of sentence. 

See id. Rodriguez petitioned our Supreme Court for an allowance of appeal, 
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but his petition was denied on May 30, 2018. Rodriguez did not seek any 

further review with the United States Supreme Court.

Rodriguez now seeks PCRA relief. The PCRA court allowed for an 

evidentiary hearing on the issues raised in his petition. After the PCRA court’s 

denial of his petition, Rodriguez filed a timely notice of appeal and, following 

prompting from the PCRA court pursuant to Pa.R.A.P. 1925(b), a concise 

statement of errors complained of on appeal. The PCRA court resultantly filed 

its Pa.R.A.P. 1925(a) opinion in support of its decision to deny Rodriguez’s 

PCRA petition.

We summarize the two issues Rodriguez raises for our review:

1. Was trial counsel ineffective for failing to make a Pa.R.Crim.P.

403 or 404 objection to one of the witnesses’ testimony when 

said testimony identified that Rodriguez’s acquaintances 

stabbed her and killed her friend?

2. Was trial counsel ineffective for failing to object to grand jury 

testimony being entered into the record when Rodriguez did 

not receive a target letter and exercised his right to remain 

silent during his trial?

See Appellant’s Brief, at 2.

When reviewing an order denying PCRA relief, “we must determine 

whether the ruling of the PCRA court is supported by the record and is free of 

legal error.” Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). 

“The PCRA court's credibility determinations are binding on this Court when 

they are supported by the record. However, this Court applies a de novo

standard of review to the PCRA court's legal conclusions.” Id.
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As both of Rodriguez’s claims assert ineffective assistance of counsel, 

we begin from the premise that counsel is presumed to have rendered 

effective assistance. See Commonwealth v. Rivera, 10 A.3d 1276, 127 (Pa. 

Super. 2010). Moreover, Pennsylvania courts have, largely verbatim, adopted 

the test espoused by the United States Supreme Court in Strickland v. 

Washington, 466 U.S. 668 (1984). See Commonwealth v. Pierce, 527 

A.2d 973, 976-77 (Pa. 1987). Therefore, to meet his burden of demonstrating 

ineffectiveness, Rodriguez must plead and prove by a preponderance of the 

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular 

course of conduct pursued by counsel did not have some reasonable basis 

designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, 

there is a reasonable probability that the outcome of the challenged 

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d 

567, 572 (Pa. 2003).

An ineffective assistance of counsel claim is fatally defective if the 

petitioner fails to satisfy any prong of the three-part test. See 

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). To that point, as 

an appellate court, we “need not analyze the prongs of an ineffectiveness 

claim in any particular order.” Commonwealth v. Johnson, 139 A.3d 1257, 

1272 (Pa. 2016). Lastly, “counsel cannot be deemed ineffective for failing to 

raise a meritless claim.” Id. 

In his first issue, Rodriguez contends that testimony from one witness 
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violated several rules of evidence and that trial counsel was ineffective by not 

objecting to this testimony. Specifically, Rodriguez objects to testimony he 

believes constituted evidence of prior bad acts. He argues on appeal that such 

testimony should have been excluded pursuant to Pa.R.E. 403 (allowing the 

court to exclude relevant evidence if its value is outweighed by, among other 

things, unfair prejudice), Pa.R.E. 404(a)(1) (explaining that character or traitbased evidence cannot be admitted to prove that a person acted in accordance 

with either of those dispositions on any particular occasion), or Pa.R.E. 

404(b)(1) (identifying that prior “bad acts” are not admissible to prove a 

person acted in accordance with that character). Rodriguez highlights Rule 

404(b)(1)’s requirement that the Commonwealth provide reasonable notice of 

its intent to present prior bad act evidence either prior to trial, or, if it can 

show good cause, during trial. See Pa.R.E. 404(b)(3).

In the interest of fully getting to the heart of Rodriguez’s averments, we 

have replicated the at-issue colloquy between the Commonwealth and the 

witness:

 COMMONWEALTH: Were you assaulted in June?

 WITNESS: I was stabbed 10 times.

 COMMONWEALTH: Who stabbed you?

 WITNESS: Acquaintances of [Rodriguez].

COMMONWEALTH: Do you know did [witness’s former 

paramour] have anything to do with the stabbing?

WITNESS: Of course he had something to do with it.

COMMONWEALTH: But after that, did you start opening up even 

more about what you had observed [of the homicide in 

Northampton County]?

WITNESS: Yes, because then they killed my friend ...so I wasn’t

like–it was just like, when is enough[?]
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 COMMONWEALTH: And that was in New York?

WITNESS: Yeah.

 COMMONWEALTH: But you’re not saying [Rodriguez] did that?

WITNESS: No. No. I’m saying his acquaintances did that, just like 

his acquaintances did that to me.

N.T., 2/3/16, at 158-61.

Rodriguez avers that the witness’s testimony “was improper introduction 

of prior bad acts.” Appellant’s Brief, at 8. Rodriguez interprets the above text 

as “essentially align[ing] Rodriguez with another homicide” and “plant[ing] in 

the minds of the jurors that Rodriguez is the type of person to have a witness 

stabbed 10 times.” Id. Rodriguez claims the Commonwealth failed to provide 

404(b)(3) notice of its intent to introduce this prior bad act evidence. See id.

 Other than providing a singular citation to and recitation of Pa.R.E. 403, 

Rodriguez fails to discuss why the testimony he identifies should have been 

excluded as irrelevant or unfairly prejudicial. In the absence of any support, 

such a claim necessarily fails. See Commonwealth v. Williams, 732 A.2d 

1167, 1175 (Pa. 1999) (explaining “the unavailability of relief based upon 

undeveloped claims for which insufficient arguments are presented on 

appeal”).

 Regarding his 404 assertions, Rodriguez’s argument hinges on whether 

the prior bad act testimony at issue impugned Rodriguez’s character. We see 

no arguable merit to this claim. The witness expressly disavowed Rodriguez’s 

involvement with her being stabbed or the murder of the witness’s friend. 

Accordingly, there is no predicate prior bad act or character evidence to 
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consider in that evidence’s admissibility.

Simply put, Rule 404 does not apply. First, the highlighted testimony 

does not establish that Rodriguez, himself, committed any prior bad acts. 

Second, the only potential “character evidence” identified is Rodriguez’s 

acquiescence to “acquaintance status” with these other individuals who 

apparently stabbed the witness and killed the witness’s friend. However, 

Rodriguez provides no support to establish that merely being an acquaintance 

with another who commits bad acts somehow imputes bad act evidence on 

oneself. Moreover, the testimony does not indicate that Rodriguez even had 

any knowledge of these bad acts. Therefore, any objection premised on Rule 

404 would have failed, and it was not ineffective assistance of counsel to not 

pursue such an objection.

Next, Rodriguez maintains that it was a due process violation under the 

Fifth and Fourteenth Amendments of the United States Constitution when the 

Commonwealth read grand jury testimony into the record at trial. Rodriguez 

takes issue with not only the introduction of his own statements to the grand 

jury, asserting that such testimony violated his right against selfincrimination, but also contests the questions that the prosecutor asked him, 

which “repeatedly contained highly incriminating, limitless layers of hearsay.” 

Appellant’s Brief, at 11.

 We find that there has been no violation of his right against selfincrimination. Although he exercised his right to remain silent during his trial, 
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that action does not immunize him from the impacts of his own past 

testimony. Rodriguez, who was represented by counsel throughout the entire 

grand jury proceeding, does not challenge whether he was apprised of his 

right against compulsory self-incrimination. Absent some indication that his 

testimony was not voluntary or that the court did not fully identify his rights, 

we are constrained to conclude that his grand jury testimony was derived from 

his own volition. Therefore, “[w]hen [Rodriguez] took the stand in the prior 

proceedings without asserting his privilege against self-incrimination, he 

thereby waived the privilege as to the testimony given, and that testimony 

could be used against him in a subsequent trial.” Commonwealth v. 

Ferguson, 516 A.2d 1200, 1202 (Pa. Super. 1986).

 Next, Rodriguez points to certain questions the prosecutor asked him in 

front of the grand jury. He proclaims that, because these questions identify 

non-testifying individuals and set forth their statements, he was denied his 

right to cross examine the witnesses against him. He contends the questions 

were inherently testimonial in nature and prohibited unless a named witness 

was unavailable. See Commonwealth v. Ramtahal, 33 A.3d 602, 610 n.5 

(Pa. 2011); see also Pa.R.E. 804(b)(1). For example, one of the questions 

asked why Rodriguez’s girlfriend’s mother would say that he was not at her 

home at the time of the shooting. See N.T., 2/4/16, at 75. 

“Hearsay is an out-of-court statement offered to prove the truth of the 

matter it asserts.” In re Shahan, 631 A.2d 1298, 1304 (Pa. Super. 1993). 
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Through our analysis of the questions Rodriguez has identified we ascertain 

that the questions, themselves, were not being asked in order to prove any of 

the “truth” arguably advanced within those out-of-court “statements.” 

Instead, the questions were contextually necessary for the jury to fully 

understand Rodriguez’s answers, which, in large part, formed the basis of his 

alibi or were at least congruent with his alibi asserted at trial. Accordingly, 

because the statements were not admitted for their truth, but rather their 

effect on the listener – in this case, Rodriguez, as he testified before the grand 

jury – the questions were not hearsay. See id. Counsel, therefore, cannot be 

faulted for not objecting to a claim that lacked arguable merit.

Furthermore, even if those questions were erroneously entered into the 

record, Rodriguez has failed to demonstrate that he suffered from any 

resulting prejudice. Rodriguez merely states that prejudice ensued because 

“no other witness testified about whether Rodriguez was at his girlfriend’s 

home or whether or not he left his phone behind with someone else when he 

decided to leave the bar.” Appellant’s Brief, at 15. Rodriguez then proceeds to 

hollowly assert that, besides his own grand jury testimony, the only other 

existent testimony was that of “two personally motivated witnesses.” Id. 

However, given that Rodriguez has provided no reason to effectively strike the 

testimony of the two witnesses who actually saw him at the bar 

contemporaneous to the shooting, we see no reason to conclude that there is 

a reasonable probability that the outcome of the proceedings would have been 
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different. See Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 

2014) (indicating that the trier of fact is free to believe all, part, or none of 

the evidence when passing upon the credibility of witnesses).

As neither of Rodriguez’s issues constitute ineffective assistance of 

counsel, we find that PCRA relief is unwarranted and affirm the order 

dismissing his PCRA petition. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/20