J-A24045-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE LUCIANO-HERRERA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1773 WDA 2019

Appeal from the PCRA Order Entered October 31, 2019

in the Court of Common Pleas of Washington County

Criminal Division at No(s): CP-63-CR-0000534-2010

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 22, 2021

Jose Luciano-Herrera (“Luciano-Herrera”)1 appeals, pro se, from the 

Order dismissing his Petition for relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”).2 We affirm.

On February 28, 2010, the body of Jose Medina (“Medina”) was 

discovered on the railroad tracks between Youngstown Street and Strabane 

Avenue, in Canonsburg, Pennsylvania. Canonsburg police officers, as well as 

two paramedics, responded to the scene. The police observed wounds to 

Medina’s neck and chin. The police officers called Canonsburg Police 

____________________________________________

1 The appellant’s name is listed as “Luciano-Herrera” and as “Herrera-Luciano” 

at various points throughout the record. However, on all pro se appellate 

documents, Luciano-Herrera refers to himself as “Luciano-Herrera.”

2 42 Pa.C.S.A. §§ 9541-9546.
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Detectives Alexander Coghill (“Detective Coghill”) and Sergeant Charles

Tenney (“Detective Tenney”) (collectively, the “Detectives”) to investigate. A 

subsequent autopsy revealed that Medina’s death was a homicide caused by 

38 stab and incised wounds to the neck. 

During the course of the investigation, Canonsburg Police interviewed 

Samuel Cruz (“Cruz”), who lived in the same rooming house as LucianoHerrera and worked for the same concrete firm. Cruz indicated that he and

Luciano-Herrera had been with Medina on the railroad tracks, and that 

Luciano-Herrera had stabbed Medina several times. Afterwards, Cruz and 

Luciano-Herrera went out drinking.

On March 4, 2010, Pennsylvania State Trooper Anthony Leibhart 

(“Trooper Leibhart”) executed a search warrant at Shannon Rae Perez Lucas’s

apartment, where Luciano-Herrera was staying. During the search, Trooper 

Leibhart obtained Luciano-Herrera’s gray work sweater.

The Canonsburg Police submitted the gray sweater, along with the black 

sweater that Medina was wearing, to Greensburg Regional Forensic Laboratory

(“GRSL”) for testing and examination. Testing revealed that Medina’s blood 

was “observed” in thirteen areas of Luciano-Herrera’s gray sweater, and 

“confirmed” in five areas. Testing further revealed that the size of the stain 

on Luciano-Herrera’s gray sweater was in “agreement” with the blood pattern 

observed on Medina’s black sweater. Ashlee Mangan, a forensic serologist at 
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GRSL, concluded that the blood stains on Luciano-Herrera’s gray sweater were

of the same size and shape as the blood pattern on Medina’s black sweater.

On March 4, 2010, the police interviewed Luciano-Herrera about 

Medina’s murder. The Detectives, and Pennsylvania State Police Trooper 

Raymond Quiroz, Jr. (“Trooper Quiroz”), conducted the interview. Trooper 

Quiroz asked investigatory questions of his own, acted as a Spanish-English

translator for Luciano-Herrera, and translated questions asked by the 

Detectives. During the first hour of the interview, which was recorded and 

transcribed, Luciano-Herrera was given his Miranda3rights in Spanish, and 

he waived his rights. 

Initially, Luciano-Herrera denied that he was ever at the train tracks that 

night with Cruz and Medina. After further questioning by the police, LucianoHerrera stated that Medina had hit him and threatened to kill him in the past. 

Luciano-Herrera continued to deny that he had killed Medina, but admitted 

that he had struck Medina several times. Luciano-Herrera insisted that Cruz 

had actually stabbed and killed Medina. Luciano-Herrera stated that he was 

scared and held Medina while Cruz stabbed Medina.

At some point during the interview, Luciano-Herrera indicated that he 

wanted an attorney present. After a couple of minutes, Luciano-Herrera 

indicated that he wanted to continue speaking with police, but only if the 

____________________________________________

3 Miranda v. Arizona, 384 U.S. 436 (1966).
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recording device was turned off. During this second, unrecorded, statement, 

Luciano-Herrera demonstrated how he held Medina during the stabbing, 

admitted that he had stabbed Medina in the leg, and stated that he had heard 

gurgling sounds coming from Medina’s throat and mouth.

On November 5, 2010, Luciano-Herrera filed an Omnibus Pre-Trial 

Motion alleging, inter alia, that Luciano-Herrera’s due process and Miranda

rights had been violated because Trooper Quiroz lacked certification to act as 

a translator, was an investigator on the case, and had continued to question 

him after Luciano-Herrera had asked for an attorney. After a hearing, the trial 

court denied Luciano-Herrera’s Motion.

On March 4, 2011, after a bench trial, Luciano-Herrera was found guilty 

of murder in the first degree and conspiracy.

4

 On May 12, 2011, the trial court 

sentenced Luciano-Herrera to life in prison without the possibility of parole. 

On June 20, 2013, this Court affirmed Luciano-Herrera’s judgment of 

sentence, and the Pennsylvania Supreme Court denied Luciano-Herrera’s 

Petition for allowance of appeal. See Commonwealth v. Luciano-Herrera, 

82 A.3d 465 (Pa. Super. 2013) (unpublished memorandum), appeal denied,

77 A.3d 636 (Pa. 2013).

On March 24, 2014, Luciano-Herrera filed a timely, pro se, PCRA 

Petition. After multiple postponements and changes of counsel, Luciano-

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4 18 Pa.C.S.A. §§ 2502(a), 903(a)(1).
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Herrera elected to proceed pro se. On August 12, 2019, the PCRA court filed 

a Pa.R.Crim.P. 907 Notice of Intent to Dismiss Luciano-Herrera’s Petition 

without a hearing. Luciano-Herrera filed timely Objections, and on October

29, 2019, the PCRA court dismissed Luciano-Herrera’s Petition.
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Luciano-Herrera filed a timely Notice of Appeal5 and court-ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

____________________________________________

5 Luciano-Herrera’s pro se Notice of Appeal is dated November 21, 2019. The 

docket reflects that his Notice of Appeal was not filed until December 2, 2019, 

outside of the 30-day time limit to appeal. See Pa.R.A.P. 903(a) (providing 

that “the notice of appeal ... shall be filed within 30 days after the entry of the 

order from which the appeal is taken”). However, Luciano-Herrera was in 

prison at the time that he filed his Notice of Appeal, and is therefore entitled 

to the benefit of the “prisoner’s mailbox rule.” See Commonwealth v. 

Perez, 716 A.2d 1287, 1289 (Pa. Super. 1998) (applying the prisoner mailbox 

rule to notices of appeal). Under this rule, submissions from an incarcerated 

litigant are deemed to be filed when deposited into the prison mailing system 

or handed over to prison officials for mailing. Pa.R.A.P. 121(f); see also 

Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).

There is no additional documentation indicating when Luciano-Herrera 

submitted his Notice of Appeal to prison officials to be mailed. However, “[this 

Court] is inclined to accept any reasonably verifiable evidence of the date that 

the prisoner deposits the appeal with the prison authorities.” 

Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (emphasis 

added). Instantly, on November 26, 2019, the PCRA court issued, most likely 

in response to receiving Luciano-Herrera’s Notice of Appeal, its Pa.R.A.P. 

1925(b) Concise Statement Order before the 30-day appeal period had 

passed. Moreover, we note that the Thanksgiving holiday was on November 

28, 2019, which made Luciano-Herrera’s final date to file an appeal November 

29, 2019. See 1 Pa.C.S.A. § 1908 (providing that “[w]henever the last day 

of any such period shall fall on ... any day made a legal holiday by the laws of 

this Commonwealth or the United States, such day shall be omitted from the 

computation.”); see also Commonwealth v. Betts, 240 A.3d 616, 619 n.5 

(Pa. Super. 2020) (considering holiday-related mail delays in prisoner mailbox 

rule time computations); Commonwealth v. Patterson, 931 A.2d 710, 714 

(Pa. Super. 2007) (concluding that a pro se submission that arrived late for 

filing by three days, where the two following days fell on a weekend, was 

presumed timely despite a lack of supporting documentation based on the 

date of delivery). Given the inherent delays associated with mail delivery, and 

the totality of the circumstances, we will deem the appeal timely filed. 
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Luciano-Herrera now presents the following claim for our review: “The 

[PCRA] court abused its discretion when it dismissed [Luciano-Herrera’s PCRA 

P]etition.” Brief for Appellant at 3 (some capitalization omitted).

6

We review an order dismissing a petition under the PCRA in 

the light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 

evidence of the record. We will not disturb a PCRA court’s ruling 

if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted).

Counsel is presumed to be effective, and “the burden of demonstrating 

ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10 

A.3d 1276, 1279 (Pa. Super. 2010).

To satisfy this burden, an appellant 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. Failure to satisfy any prong 

of the test will result in rejection of the appellant’s ineffective 

assistance of counsel claim.

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6 We observe that Luciano-Herrera raises two distinct claims pertaining to 

counsel’s ineffectiveness in the Argument section of his appellate brief, which

are not preserved in his Statement of Questions Involved, as is required by 

Pa.R.A.P. 2116(a). See Commonwealth v. Ivy, 146 A.3d 241, 254 (Pa. 

Super. 2016) (stating that failure to raise an issue in the statement of 

questions involved waives the issue on appeal) (citing Pa.R.A.P. 2116(a)). 

Nevertheless, we decline to find Luciano-Herrera’s claims waived because the 

PCRA court was able to address his claims in its Opinion. See PCRA Court 

Opinion, 1/14/20, at 1-9.
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Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal 

citations omitted).

In his first claim, Luciano-Herrera contends that his trial counsel 

rendered ineffective assistance of counsel by failing to call a DNA expert to 

examine the blood and hairs found at the crime scene. Brief for Appellant at 

7-8. Luciano-Herrera claims that he was prejudiced by his trial counsel’s 

failure to hire a DNA expert to rebut the Commonwealth’s DNA expert. Id. at 

7-8.

“Where a claim is made of counsel’s ineffectiveness for failure to call 

witnesses, it is the appellant’s burden to show that the witness existed and 

was available[.]” Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 

2011). Further, appellant must prove that “counsel was aware of, or had a 

duty to know of the witness; the witness was willing and able to appear; and 

the proposed testimony was necessary in order to avoid prejudice to the 

appellant.” Id. “The mere failure to obtain an expert [] witness is not 

ineffective[ assistance of counsel.]” Id.

Luciano-Herrera has failed to adequately develop this claim for our 

review. At no point in the PCRA proceedings, nor before this Court, has 

Luciano-Herrera identified any alleged DNA expert, the availability of any 

alleged expert, the alleged duties of trial counsel, or how such an expert’s 

testimony would have avoided prejudice to Luciano-Herrera. See Chmiel, 

supra; see also Commonwealth v. Paddy, 14 A.3d 431, 443 (Pa. 2011) 
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(providing that “boilerplate allegations and bald assertions ... cannot satisfy a 

petitioner’s burden to prove that counsel was ineffective.”). Accordingly, 

Luciano-Herrera’s first claim is waived.

Even if Luciano-Herrera had preserved this claim for our review, the 

PCRA court addressed it as follows:

In his closing, defense counsel admitted that [Medina]’s

blood was on [Luciano-Herrera]’s sweater and that such evidence 

was consistent with the testimony of [Luciano-Herrera]. [LucianoHerrera] testified at trial “[b]oth [Medina and Cruz] fell on top of 

me.” Then he saw Cruz stabbing the victim.

* * *

Since [Luciano-Herrera] admitted to his counsel, to the 

police, and to the [c]ourt that he had [Medina]’s blood on his 

clothing, a separate DNA test would be unnecessarily duplicative. 

Similarly, [Luciano-Herrera] and [Medina] were on the ground 

together and any hair evidence would be neither exculpatory [n]or 

inculpatory. [Luciano-Herrera] did not establish that the claim 

had any merit and [trial counsel] was not ineffective for not 

pursuing a groundless claim.

PCRA Court Opinion, 1/14/20, at 5-6.

Our review of the record confirms the PCRA court’s conclusion. See N.T. 

(Non-Jury Trial Volume 2), 3/2-4/11, at 300-03 (wherein Luciano-Herrera 

testified that he was beneath Medina while Cruz stabbed Medina, and that 

Medina’s blood was on his clothing). Thus, Luciano-Herrera has failed to 

demonstrate that his claim has arguable merit. See Chmiel, supra; see also 

Holt, supra. Based upon the foregoing, we cannot grant Luciano-Herrera 

relief on this claim. 
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In his second claim, Luciano-Herrera claims that his counsel rendered 

ineffective assistance by failing to argue and preserve, prior to trial, a due 

process argument that Trooper Quiroz was improperly acting as both a 

translator and investigator during his interrogation. Brief for Appellant at 9-

15. In particular, Luciano-Herrera asserts that Trooper Quiroz’s participation 

as both a translator and an investigator cannot be permitted because “of the 

potential for bias.” Id. at 10. In support, Luciano-Herrera argues that, in 

translating Luciano-Herrera’s Spanish responses into English, Trooper Quiroz 

misrepresented what Luciano-Herrera said, and would ask him questions in 

Spanish that the Detectives did not ask in English.

7

 Id. at 11-15.

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7 We note that Luciano-Herrera, in his appellate brief, almost entirely 

abandons his ineffective assistance of counsel claim and primarily argues that 

his claim was not previously addressed by this Court on his direct appeal. See

Brief for Appellant at 10-15; see also Commonwealth v. Luciano-Herrera, 

82 A.3d 465 (Pa. Super. 2013) (unpublished memorandum at 13-15) 

(concluding that Luciano-Herrera had waived his claim that Trooper Quiroz 

should not have acted as a translator and investigator for failure to cite 

relevant case law). 

Nevertheless, in the instant appeal, Luciano-Herrera has claimed his trial 

counsel rendered ineffective assistance of counsel by failing to argue and 

preserve due process and exclusionary rule claims with regard to Trooper 

Quiroz acting as a translator. See Commonwealth v. Collins, 888 A.2d 564, 

570-71 (Pa. 2005) (providing that a PCRA claim of ineffective assistance of 

counsel raises a distinct legal ground, rather than an alternative theory in 

support of the same underlying issue that was raised on direct appeal, and, 

thus, ineffectiveness claims are distinct from previously litigated issues and 

may be brought in PCRA proceedings). Accordingly, Luciano-Herrera’s 

ineffective assistance of counsel claim has not been previously litigated, and 

we will address the merits of that claim.
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“[W]here a defendant alleges that counsel ineffectively failed to pursue 

a suppression motion, the inquiry is whether the failure to file the motion itself 

is objectively unreasonable, which requires a showing that the motion would 

be meritorious.” Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa. 

Super. 2018). “[T]he defendant must establish that there was no reasonable 

basis for not pursuing the suppression claim and that if the evidence had been 

suppressed, there is a reasonable probability that the verdict would have been 

more favorable.” Commonwealth v. Melson, 556 A.2d 836, 839 (Pa. Super. 

1989).

Instantly, the record belies Luciano-Herrera’s claim. As the PCRA court 

noted, Luciano-Herrera’s trial counsel did, in fact, file an Omnibus Pre-Trial 

Motion, which included a due process argument that Trooper Quiroz 

improperly acted as a translator where he was also an investigator on the 

same case. See Omnibus Pre-Trial Motion, 11/5/10, at 1-3 (unnumbered); 

see also PCRA Court Opinion, 1/14/20, at 7-8 (wherein the PCRA court 

summarizes the contents of the Omnibus Pre-Trial Motion). Moreover, 

throughout the trial, Luciano-Herrera’s trial counsel objected several times to 

Trooper Quiroz’s testimony regarding Luciano-Herrera’s interview. See N.T. 

(Non-Jury Trial Volume 1), 3/1/11, at 6-10 (wherein trial counsel placed a 

continuing objection to Trooper Quiroz’s testimony based upon the assertion 

that Trooper Quiroz was an improper translator); see also id. at 159-72
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(wherein trial counsel renewed his objection). Accordingly, Luciano-Herrera’s 

claim lacks merit.

Based on the foregoing, we affirm the PCRA court’s Order dismissing his 

PCRA Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/22/2021