J-S49026-16

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellee

v.

VIRGIL RIVERA,

Appellant No. 2307 EDA 2015

Appeal from the PCRA Order of June 30, 2015

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0002459-2011

BEFORE: PANELLA and OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED JULY 14, 2016

Appellant, Virgil Rivera, appeals from the order entered on June 30, 

2015 denying his first petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The factual and procedural history of this case is as follows. In the 

summer of 2008, S.F., the 12-year-old daughter of Appellant’s paramour, 

visited Appellant’s apartment. While S.F. was watching television, Appellant 

reached under her shirt and touched her breasts. He proceeded to digitally 

penetrate her vagina, perform cunnilingus on her, and engage in vaginal 

intercourse with her.
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On August 15, 2011, Appellant pled guilty to rape of a minor,1

statutory sexual assault,2indecent assault of a person less than 13 years of 

age,3indecent assault of a person less than 16 years of age,4aggravated 

indecent assault of a minor,5and involuntary deviate sexual intercourse with 

a minor.6 The trial court sentenced Appellant to 6 to 20 years’ incarceration. 

Appellant did not file a direct appeal.

On March 4, 2013, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel. On June 18, 2014, counsel filed an amended 

petition. On June 18, 2015, the PCRA court held an evidentiary hearing. On 

June 30, 2015, the PCRA court denied Appellant’s petition. This timely 

appeal followed.7

____________________________________________

1

 18 Pa.C.S.A. § 3121(c).

2

 18 Pa.C.S.A. § 3122.1.

3

 18 Pa.C.S.A. § 3126(a)(7).

4

 18 Pa.C.S.A. § 3126(a)(8).

5

 18 Pa.C.S.A. § 3125(b).

6

 18 Pa.C.S.A. § 3123(b).

7

 On July 30, 2015, the PCRA court ordered Appellant to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). Appellant filed his concise statement on August 19, 

2015. The PCRA court issued its Rule 1925(a) opinion on February 10, 

2016. The lone issue raised by Appellant on appeal was included in his 

concise statement. 
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Appellant presents one issue for review:

Did the [PCRA court] err in denying Appellant’s request for PCRA 

relief where Appellant’s counsel failed to present mitigating 

character witnesses at Appellant’s sentencing?

Appellant’s Brief at 4.

As most PCRA appeals involve mixed questions of fact and law, “[o]ur 

standard of review of an order granting or denying relief under the PCRA 

requires us to determine whether the decision of the PCRA court is 

supported by the evidence of record and is free from legal error.” 

Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super. 

2015) (internal alteration, quotation marks, and citation omitted). We give 

great deference to the findings of the PCRA court and will not disturb those 

findings unless there is no support in the record. Commonwealth v. 

Hickman, 799 A.2d 136, 140 (Pa. Super. 2002). 

In his sole claim for relief,8 Appellant contends that he would have 

received a lesser sentence but for trial counsel’s ineffectiveness in failing to 

present additional, mitigating character evidence. Although claims related to 

the discretionary aspects of sentencing are not cognizable under the PCRA, 

the gravamen of Appellant’s claim rests upon his Sixth Amendment right to 

counsel and not the sentence itself. Therefore, Appellant’s claim is 

____________________________________________

8 To the extent that Appellant argues that trial counsel was ineffective for 

failing to elicit testimony about Appellant’s upbringing, that argument is 

waived. See Pa.R.A.P. 2116(a). 
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cognizable under the PCRA. See Commonwealth v. Bronaugh, 670 A.2d 

147, 150 (Pa. Super. 1995). 

A “defendant’s right to counsel guaranteed by the Sixth Amendment to 

the United States Constitution and Article I, [Section] 9 of the Pennsylvania 

Constitution is violated where counsel’s performance so undermined the 

truth-determining process that no reliable adjudication of guilt or innocence 

could have taken place.” Commonwealth v. Simpson, 66 A.3d 253, 260 

(Pa. 2013) (internal quotation marks and citation omitted). “Trial counsel is 

presumed to be effective[.]” Commonwealth v. Perry, 128 A.3d 1285, 

1289 (Pa. Super. 2015) (citation omitted). To prevail on an ineffective 

assistance of counsel claim, a petitioner must plead and prove “that: 1) the 

claim underlying the ineffectiveness claim has arguable merit; 2) counsel’s 

actions lacked any reasonable basis; and 3) counsel’s actions resulted in 

prejudice to petitioner.” Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 

2009). Where it is clear that a petitioner has failed to satisfy any one prong 

of the test, this Court may dispose of the claim on that basis alone. 

Commonwealth v. Steele, 961 A.2d 786, 795 (Pa. 2008). 

We focus our attention on the arguable merit prong of Appellant’s 

ineffectiveness claim. Sentencing counsel’s failure to call a particular 

witness or witnesses does not constitute per se ineffectiveness. 

Commonwealth v. Lauro, 819 A.2d 100, 105 (Pa. Super. 2003) (citation 

omitted). To succeed on a claim for ineffective assistance because of a 
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failure to introduce testimony at sentencing, Appellant must establish: 1) 

that the witnesses existed; 2) that the witnesses were ready and willing to 

testify; and 3) that the absence of the witnesses’ testimony prejudiced 

petitioner. Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 

2007). 

Appellant failed to prove that the alleged witnesses were ready and 

willing to testify at the sentencing hearing. Appellant did not produce any 

affidavits or testimony at the PCRA hearing stating that his now-identified 

character witnesses were ready and willing to testify at the sentencing 

hearing. Trial counsel testified that he was unaware of any such witnesses 

and that, if he had been made aware of any witnesses ready and willing to 

offer character evidence on Appellant’s behalf, he would have presented 

such evidence at sentencing. N.T., 6/18/15, at 45, 49. At the PCRA 

hearing, counsel testified that several of Appellant’s family members and 

friends attended the preliminary hearing in this matter and became 

noticeably upset and angry at Appellant because of the nature of his 

offenses. Id. at 48. This testimony supports the PCRA court’s 

determination that counsel was never made aware of individuals who were 

ready and willing to appear as character witnesses on Appellant’s behalf or 

to submit letter of reference in his favor.

As to the character letters referenced by Appellant, all of the letters 

were written after Appellant’s judgment of sentence became final. Thus, the 
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letters clearly were unavailable for counsel’s use at sentencing. In addition, 

the sentencing letters do not state that the respective authors were ready, 

willing, and available to testify at the sentencing hearing. For these reasons, 

the PCRA court found that Appellant failed to prove that “those character 

witnesses would have readily and willingly provided character references for 

[Appellant], prior to his sentencing.” PCRA Court Opinion, 2/10/16, at 9. As 

nothing in the record contradicts the PCRA court’s finding, we will leave it 

undisturbed. See Cox, 983 A.2d at 679. As Appellant failed to prove that 

any witness was ready, willing, and able to either testify at the sentencing 

hearing or write a letter on Appellant’s behalf at the time of sentencing, he 

failed to plead and prove that his underlying claim has arguable merit. 

Accordingly, we affirm the denial of PCRA relief on this basis. See 

Commonwealth v. Spenny, 128 A.3d 234, 251 (Pa. Super. 2015) (“[T]he 

law is clear that we may affirm the trial court’s decision on any proper 

basis.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2016