J-S01004-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRANCE XAVIER PEREZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1060 MDA 2020

Appeal from the PCRA Order Entered July 24, 2020

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

No(s): CP-41-CR-0001046-2015

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED MARCH 8, 2021

Terrance Xavier Perez appeals from the order, entered in the Court of 

Common Pleas of Lycoming County, denying his petition filed pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful 

review, we affirm.

We have previously set forth the underlying facts of this case as follows:

On May 11, 2015, a[n] altercation occurred between Rory Herbert 

and Jamil Bryant[,] the victim[,] due to Herbert’s belief that 

[Bryant] had “shorted” him on a marijuana purchase. Herbert 

recounted the event to his cousin, Brandon Love, who was a friend 

of [Perez] and [Bryant]. Thereafter, Herbert, Love, and [Perez]

went to the home of Cosme Berrones. Also present were 

Berrones’s girlfriend, Brooke Dawson, and Jada Jenkins, the 

mother of Love’s child. Love and [Perez] spent the next several 

hours on Love’s cell phone, texting and orally arguing with 

[Bryant]. Berrones testified that [Bryant] threatened to blow 

Love’s head off and, in response, [Perez] stated to [Bryant], “if 

you have a problem with Love then you have a problem with me, 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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he’s not the only one with a gun.” Thereafter, [Perez] and Love 

left Berrones’s home and, when they returned, [Perez] had a silver 

revolver. [Perez] asked Love and [] Jenkins to take him to get 

bullets for the firearm, but they declined.

[Perez] then started talking about shooting [Bryant]. [Perez]

asked Love for a ride home, but Love refused. Ultimately, 

Berrones used Love’s vehicle to drive [Perez] home, where 

[Perez], a state parolee, dropped off his electronic ankle 

monitor[,] in order to establish a false alibi regarding his 

whereabouts[, and] in anticipation of later shooting 

[Bryant]. [Perez] and Berrones returned to Berrones’s home, 

where [Perez] debated [] getting ammunition for the silver 

revolver or a different gun for the purpose of killing [Bryant]. 

[Perez] asked Love for a ride to get another gun, and Love 

refused. Berrones thereafter drove [Perez] to a storage facility 

for the purpose of retrieving another gun. [Chris Hayman, driving 

a silver van,] met [Perez] at the entrance to the storage 

facility[. Perez] entered the silver van, after which[,] he and 

[Hayman] drove through the gates of the storage facility [and]

reemerged [approximately five minutes later]. When [Perez] reentered Love’s vehicle, he was carrying a long black assault 

rifle. Berrones and [Perez] returned to Berrones’s home with the 

assault rifle, whereupon [Perez] resumed talking about shooting 

[Bryant].

[Perez] then asked Love for a ride to [Bryant]’s house, and Love 

agreed. Love then drove [Perez] and Berrones to [Bryant]’s

neighborhood, where they spent forty to forty-five minutes driving 

around looking for [Bryant]. Eventually, they saw [Bryant] on his 

front porch, and Love and Berrones dropped off [Perez] nearby

[with] the assault rifle[.] Love and Berrones proceeded to a prearranged pick-up location on Grant Street[,] where they waited 

for [Perez]. Berrones heard what sounded like firecrackers before 

[Perez] ran back to Love’s car, and said that he “shot that pussy 

in his muffin.”1 [Perez] warned Love and Berrones, “you pussies 

better not say anything.”

1 Berrones testified that “muffin” means “head,” and that 

[Perez] was indicating that he shot [Bryant] in the head.

Upon return[ing] to Berrones’s home, [Perez], still in possession 

of the assault rifle, went to the basement, and re-emerged without 

the weapon. [Perez then borrowed clothes and a backpack from 

Berrones to change his appearance.] As [Perez] left Berrones’s 
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home, Berrones heard him say “let me know when that pussy dies, 

I’ll feel better at night.”

Shortly thereafter, Berrones found the assault rifle in the rafters 

of his basement. . . . Berrones later consented to a search of his 

home, [] led police to the weapon . . . and confirmed that [Perez]

used [it] to shoot [Bryant].

* * *

[Perez]’s mother, Sabina Kent, was shown a photograph of the 

assault rifle recovered from Berrones’s basement, and identified it 

as belonging to [Perez]. [Kent] had last seen the assault rifle one 

week before the murder in the home she shared with 

[Perez]. [Kent also testified at trial regarding her knowledge of 

the contents of a duffel bag wherein Perez kept the assault rifle.]

* * *

[Perez] was charged with criminal homicide, criminal conspiracy 

(homicide), persons not to possess firearms, and related offenses 

for [Bryant]’s murder. The persons not to possess firearms 

charge was severed before trial. On November 1, 2016, a jury 

found [Perez] guilty of first-degree murder, criminal conspiracy 

[to commit] homicide[], and related charges. Thereafter, the trial 

court found [Perez] guilty of persons not to possess firearms. On 

November 1, 2016, the trial court sentenced [Perez to a life 

sentence without the possibility of parole and consecutive 

sentences aggregating to an additional twenty-five to fifty years’ 

incarceration. Perez] filed post-sentence motions which were 

denied by operation of law.

Commonwealth v. Perez, 486 MDA 2017, at **1-12 (Pa. Super. filed Nov.

29, 2018) (unpublished memorandum) (internal citations, brackets, and 

footnote omitted). On November 29, 2018, this Court affirmed Perez’s

judgment of sentence on direct appeal, id. at *49, and our Supreme Court 

denied review. Commonwealth v. Perez, 854 MAL 2018 (Pa. 2019). 

Accordingly, Perez’s sentence became final on July 16, 2019. See 42 

Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13.
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On August 23, 2019, Perez filed a pro se petition under the PCRA. The

court appointed Jeana Longo, Esquire, who filed an amended petition on

November 14, 2019, wherein she advanced a claim of ineffective assistance

of trial counsel for failure to preserve Perez’s claim of improperly admitted

evidence. On January 2, 2020, the court granted Perez’s request for an

evidentiary hearing, and held that hearing on July 6, 2020. The PCRA court

described what transpired at the evidentiary hearing as follows:

Chief Public Defender [Nicole] Spring[, Esquire] testified at [] the 

evidentiary hearing. . . . Both Spring[, then serving as First 

Assistant Public Defender,] and Joshua Bower, Esq[uire,] were 

assigned to handle [Perez]’s case. . . . After trial, Spring was 

solely responsible for the post-sentence motion[] and [Perez]’s

appeal. One of the issues Spring raised [] was [the fact that] the 

trial court allow[ed] the Commonwealth to introduce [that the 

“ugly gun”1 was among] the contents of a duffel bag[ via Kent’s 

rehabilitative testimony. Perez]’s [m]otion to [e]xclude 

[t]estimony regarding the “ugly gun” was initially granted[, the 

court reasoning] that the prejudicial effect of an additional gun 

outweighed [its] probative value. At trial, Bower cross[-

]examined [] Kent [] regarding the contents of the duffel bag[, 

where Perez’s assault rifle was located]:

Q. Now, I want to talk about the gun. You said that you 

had seen that gun about a week ahead of time before the 

shooting?

A. Yes.

Q. Do you recall telling the police that in that bag, in 

addition to a towel and bullets, there would be a scope?

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1 Kent used the term “ugly gun” at trial, and that term has been continuously 

used throughout the history of this case to refer to a specific revolver. The 

“ugly gun” has no connection to this case except that it was located in the 

duffel bag with the assault rifle that Perez fired at Bryant. For clarity and 

consistency, this Court will continue to use the term.
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A. Yes.

Q. And that was kept in the bag?

A. Yes.

Q. There [was] also a tripod?

A. Yes.

Q. That the gun would sit on?

A. Yes, it was.

Q. That you thought would be in the bag?

A. Yes, I did.

* * *

Q. And you told them that the scope on the gun we saw in 

Commonwealth’s No. 7 was broken?

A. Yes.

Q. Did you see a scope on Commonwealth’s Exhibit 7? If 

[] we could put 7 back up again. There is not a scope there?

A. That’s how I identified the gun[,] because there was no 

scope there.

Q. And you didn’t see a scope in the bag?

A. No.

[N.T. Jury Trial, 10/27/16, at 15-19.] Following this testimony[,]

the Commonwealth requested a sidebar [] to discuss introduction 

of the “ugly gun,” claiming [Perez] had opened the door through 

his cross-examination [of Kent]. The [Commonwealth] argued:

I believe that [Perez] has opened the door to other items 

that were, in fact, in the bag. . . . In light of the fact that 

[Perez] cross[-examined Kent regarding whether] the 

[duffel] bag was missing a scope and tripod[, which]

suggest[ed] that [Kent] was mistaken about the items in 

the bag, [the Commonwealth] believe[s] it would be 

appropriate to rehabilitate [Kent] by her also being able to 

positively identify the [“ugly gun”] that [was] found in the 
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bag, which the [c]ourt had previously precluded [the 

Commonwealth] from doing.

The [c]ourt agreed with the Commonwealth that the questions 

[Perez] asked on cross-examination enabled [it] “to get back into

the issue of whether or not [Kent] identified something properly 

in the bag,” which included the “ugly gun.” Spring testified at the 

evidentiary hearing that she included the “ugly gun” issue in both 

her post[-]sentence motion[] and [Pa.R.A.P. 1925(b)] statement, 

but did not brief the issue on appeal. In the handling of her twenty 

to fifty homicide appeals while at the Public Defender’s [O]ffice, 

Spring stated that she typically focuses on what she believes are 

the strongest issues[,] and often [] reduce[s] the issues between

[the Rule 1925(b) statement] and [the corresponding appellate] 

brief[,] to not dilute th[e] stronger issues. In [Perez’s direct 

appeal,] Spring reduced the issues from twelve to seven[, and did 

not include the “ugly gun” issue. Nevertheless,] Spring stated 

that she should have included [it].

PCRA Court Opinion, 7/24/20, at 2-4 (internal citations and footnotes

omitted).

On July 24, 2020, the PCRA court dismissed Perez’s petition by order 

with an accompanying opinion. See Opinion and Order, 7/24/20. Perez filed 

a notice of appeal on August 20, 2020, and an appellate brief on September 

29, 2020.2

On appeal, Perez presents one issue for our review: “[w]hether the 

[PCRA] court erred in failing to grant a claim of ineffectiveness of counsel 

when counsel was ineffective for waiving [Perez]’s right to appeal the 

admission of inadmissible evidence.” Appellant’s Brief, at 6. Specifically, 

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2 After our grant of an extension of time to file the Commonwealth’s reply 

brief, see Order, 10/29/20, the Commonwealth, instead, filed a notice of its 

intent to rely on the opinion and order of the PCRA court, and declined to file 

its appellate brief. See Commonwealth’s Letter, 11/30/20.
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Perez claims that trial counsel deprived him of his right to appeal the “ugly 

gun” issue by failing to raise it in his appellate brief, and that he is entitled to 

a restoration of his direct appeal. See Appellant’s Brief, at 16.

The standard of review in PCRA appeals is limited to a determination of

whether the PCRA court’s findings are supported by the record and free from 

legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). 

The PCRA court’s factual determinations are entitled to deference, but legal 

determinations are subject to plenary review. Id.

To obtain relief based on a claim of ineffective assistance of counsel, a 

PCRA petitioner must establish: (1) the underlying claim is of arguable merit; 

(2) there was no reasonable basis for counsel’s action or failure to act; and 

(3) a resultant prejudice to the petitioner—i.e., but for counsel’s error, there 

is a “reasonable probability the result of the proceeding would have been 

different.” Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015). 

Failure to satisfy any of the three prongs is fatal to a claim of ineffective 

assistance of counsel. Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 

2014). We presume counsel was effective, and the petitioner has the burden 

to prove otherwise. See Commonwealth v. Williams, 570 A.2d 75, 81 (Pa. 

1990). After review, we agree with the PCRA court’s analysis and conclude 

that Perez’s claim is meritless.

In its opinion accompanying the order dismissing Perez’s petition, the 

PCRA court reasoned that:
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[Perez] was not prejudiced by [Attorney Spring’s] omission [of the 

“ugly gun” claim in Perez’s appellate brief on direct appeal]. As 

the Commonwealth pointed out at the evidentiary hearing, the 

Pennsylvania Superior Court has previously held that

the properly admitted and uncontradicted 

independent evidence of [Perez]’s guilt was so 

overwhelming, and the prejudicial effect of the 

ostensibly erroneous admission of Agent Kontz’s limited 

testimony regarding the scope and results of the 

investigation so insignificant by comparison, that any 

error could not have contributed to the verdict.

Multiple witnesses testified as to the day-long feud involving 

[Perez], Love, and [Bryant]: [Perez]’s statements 

regarding his intent to shoot [Bryant]; [Perez’s]

unsuccessful efforts to obtain ammunition for the silver 

revolver; [Perez’s] retrieval of the assault rifle and 

ammunition from the storage facility; and [Perez’s]

statements confirming [] he [] shot [Bryant]. The jury was 

also presented with DNA and ballistics evidence that linked 

[Perez] to the murder weapon and the ammunition used to 

shoot [Bryant].

[] Perez, 486 MDA 2017, [at] *8 ([] finding the introduction of 

other evidence was harmless error [and did not contribute to the 

verdict beyond a reasonable doubt]).

The Superior Court reached this conclusion without taking into 

consideration the “ugly gun” introduced by Kent. Therefore, 

[Perez] would not have been prejudiced, even if its introduction 

was improper.

PCRA Court Opinion, 7/24/20, at 6 (emphasis added). 

Here, we agree with the PCRA court that Perez has failed to establish 

prejudice—that but for Attorney Spring’s omission, a reasonable probability 

exists that Perez’s conviction would not stand. See Treiber, supra. Indeed, 

as the PCRA court correctly points out, this Court on direct appeal, without 

taking into consideration Perez’s now complained-of admitted evidence, found 

that his conviction resulted from such overwhelming evidence of guilt that any 
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error in the conviction withstood constitutional attack. See Commonwealth 

v. Story, 383 A.2d 155, 162-63 n.12 (Pa. 1978) (standard for determining 

whether error involving state law is harmless is same as federal constitutional 

standard, which “reflects a fundamental belief that once error has been 

established, it is far worse to conclude incorrectly that the error was harmless 

than it is to conclude incorrectly that error was reversible”). Given that the 

complained-of evidence did not contribute to this Court’s harmless error 

analysis on direct appeal, Perez has failed to prove how the result of the 

proceeding could have been different.3 Therefore, Perez’s ineffective 

assistance of counsel claim fails.4 See Spotz, supra. Consequently, the 

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3 Perez argues the Commonwealth’s only reason to introduce the “ugly gun” 

was to “improperly prejudice the jury and to show that Perez had a propensity 

for criminal behavior in violation of [Pa.R.E. 404(b)(1)]. . . . The trial court 

[acknowledged, when it ruled to exclude the “ugly gun” pre-trial,] that [“the 

jury should not think Perez] had one gun[, so] he must have had the other 

gun[.]” Appellant’s Brief, at 19-20. Here, we are not persuaded that 

admission of the “ugly gun” undermines confidence in Perez’s convictions, 

especially where Perez has failed to connect such an attenuated allegation

regarding the jury’s improper consideration of propensity evidence with any 

explanation of how the proceeding would have come out differently. See

Commonwealth v. Jones, 210 A.3d 1014, 1018-19 (Pa. 2019) (“In the 

context of a post-conviction challenge to counsel’s stewardship, prejudice is 

established where the truth-determining process was so undermined that no 

reliable adjudication of guilt or innocence could have taken place, i.e. there is 

a reasonable probability that, but for counsel’s errors, the outcome of the 

proceeding would have been different. . . . [A] speculative or attenuated 

possibility of a different outcome is insufficient to undermine confidence 

in the outcome.”) (citations omitted; emphasis added).

4 To the extent Perez claims that Attorney Spring had no reasonable basis for 

omitting the “ugly gun” argument from Perez’s direct appellate brief, see 

Appellant’s Brief, at 21-22, we find that argument meritless. See 
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PCRA court’s order is supported by the record and free of legal error. See 

Johnson, supra.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/08/2021

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Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (“Courts should 

not deem counsel’s strategy or tactic unreasonable unless it can be concluded 

that an alternative not chosen offered a potential for success substantially 

greater than the course actually pursued.”) (citation and quotation marks 

omitted); see also Commonwealth v. Stanton, 120 A.3d 277, 294 (Pa. 

2015) (“[t]he process of winnowing out weaker arguments on appeal and 

focusing on those more likely to prevail, far from being evidence of 

incompetence, is the hallmark of effective appellate advocacy.”) Here, Perez 

has not shown that including the “ugly gun” claim in his appellate brief offered 

a potential for success substantially greater than the course Attorney Spring 

actually pursued, especially where we have already found that, when 

considering the evidence proffered at trial, minus the “ugly gun,” the 

Commonwealth proved Perez’s guilt beyond a reasonable doubt. See Perez, 

486 MDA 2017, at *8.