J-S78032-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC CRUZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 556 EDA 2018

Appeal from the PCRA Order January 23, 2018

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

No(s): CP-15-CR-0003627-2012

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

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 28, 2019

Appellant Eric Cruz appeals from the order of the Court of Common Pleas 

of Chester County that dismissed his petition pursuant to the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant raises three claims 

of the ineffectiveness of trial counsel. After careful review, we affirm.

This Court previously summarized the factual background of this case:

This matter arises out of an incident that took place in the 

early morning hours of September 1, 2012, outside of the Star 

Social Club, on Market Street, in West Chester, Pennsylvania. A 

fight broke out as people were leaving the club sometime after 

3:00 a.m. During the course of that fight, the victim, Jareal Mills, 

was shot in the left forearm, thereby fracturing it. The break 

required an open reduction/internal fixation. The Star Social Club, 

described in testimony as an after-hours drinking establishment, 

had video surveillance inside. Federal drug enforcement agents 

had placed video surveillance on a nearby utility pole outside the 

club. This “pole camera” captured the fight and shooting from a 

distance of approximately 100 feet.
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Detectives Louis DeShullo and John O’Hare both testified 

they knew [Appellant] from the community. Further, internal 

surveillance video taken from the Star Social Club revealed Cruz 

was in the club that night and that he left the club shortly before 

the shooting. Based upon their personal knowledge of [Appellant] 

and the video of [Appellant] inside the club, they testified they 

could identify [Appellant] as the assailant in the outside 

surveillance video. Based upon this, the police put together a 

photo array, containing a photograph of [Appellant]. This photo 

array was then shown to Mills, who stated that he could not 

identify the shooter from the lineup. A few days later, Mills 

returned to the police, telling them he could identify the shooter 

in the lineup, but had feared retaliation. He had told his mother 

about the incident and his mother had convinced him to return to 

the police. Mills looked at the photo lineup again and identified 

[Appellant] as the person who shot him. However, at trial, Mills 

disavowed his pre-trial identification of [Appellant], claiming he 

had been drinking excessively on the night in question, had likely 

smoked marijuana, and taken Xanax pills as well.

Commonwealth v. Cruz, 1127 EDA 2015, at *2-3 (Pa.Super. April 11, 2016) 

(unpublished memorandum).

On May 15, 2014, a jury convicted Appellant of Aggravated Assault, 

Simple Assault, Recklessly Endangering Another Person, and Possessing an 

Instrument of Crime. On August 14, 2014, Appellant was convicted at a

separate bench trial of Persons Not to Possess a Firearm, and Firearms Not to 

be Carried Without a License. On January 7, 2015, Appellant received an 

aggregate sentence of fifteen to thirty years’ imprisonment. This Court 

affirmed the judgment of sentence on April 11, 2016, and our Supreme Court 

denied Appellant’s petition for allowance of appeal on August 30, 2016.

On April 18, 2017, Appellant filed this PCRA petition. The PCRA court 

appointed counsel, who subsequently filed a petition seeking permission to 

withdraw and a no-merit brief pursuant to Commonwealth v. Turner, 518 
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Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super. 1988). On December 7, 2017, the PCRA court issued notice of its 

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. 

On January 2, 2018, Appellant filed a pro se response. On January 23, 2018, 

the PCRA court dismissed Appellant’s petition and permitted counsel to 

withdraw. This timely pro se appeal followed.

Appellant raises the following issues on appeal:

I. Whether trial counsel ineffectively failed to file a pretrial 

motion to suppress Appellant’s inculpatory statement, 

where Appellant gave a statement in a custodial setting to 

detectives without being advised of his Miranda rights?

II. Whether trial counsel ineffectively conceded to Appellant’s 

presence and involvement in the melee without consulting 

with Appellant thereby so undermining the truth 

determining process that no reliable adjudication of guilt or 

innocence could have taken place?

III. Whether trial counsel was ineffective for failing to object to 

the prosecutor’s prejudicial remark, where the prosecutor 

improperly stigmatized a class of people by negatively 

stereotyping urban people to live by a street code?

Appellant’s Brief, at 3. 1

Our standard of review is as follows:

When reviewing the denial of a PCRA petition, we must determine 

whether the PCRA court's order is supported by the record and 

free of legal error. Generally, we are bound by a PCRA court's 

credibility determinations. However, with regard to a court's legal

conclusions, we apply a de novo standard.

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1 Appellant’s PCRA petition was timely filed within one year of the date the 

judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b)(1). 
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Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted). To be eligible for PCRA relief, the 

petitioner must prove by a preponderance of the evidence that his conviction 

or sentence resulted from one of the enumerated circumstances found in 42 

Pa.C.S.A. § 9543(a)(2). One of these circumstances includes the “ineffective 

assistance of counsel, which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

In reviewing a claim of the ineffectiveness of counsel, we are guided by 

the following principles:

It is well-established that counsel is presumed to have provided 

effective representation unless the PCRA petitioner pleads and 

proves all of the following: (1) the underlying legal claim is of 

arguable merit; (2) counsel's action or inaction lacked any 

objectively reasonable basis designed to effectuate his client's 

interest; and (3) prejudice, to the effect that there was a 

reasonable probability of a different outcome if not for counsel's 

error. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 

973, 975–76 (1987); Strickland v. Washington, 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The PCRA court may 

deny an ineffectiveness claim if “the petitioner's evidence fails to 

meet a single one of these prongs.” Commonwealth v. 

Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000).... 

Because courts must presume that counsel was effective, it is the 

petitioner's burden to prove otherwise. See Pierce, supra; 

Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039, 

1044 (1999).

Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018) 

(quoting Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d 

310, 321 (2007)).
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Our courts have provided further explanation of our review of 

ineffectiveness claims:

Generally, counsel's assistance is deemed constitutionally 

effective if he chose a particular course of conduct that had 

some reasonable basis designed to effectuate his client's 

interests. Where matters of strategy and tactics are 

concerned, a finding that a chosen strategy lacked a 

reasonable basis is not warranted unless it can be concluded 

that an alternative not chosen offered a potential for success 

substantially greater than the course actually pursued. To 

demonstrate prejudice, the petitioner must show that there 

is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceedings would 

have been different. A reasonable probability is a 

probability that is sufficient to undermine confidence in the 

outcome of the proceeding.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 

2014) (internal brackets and some internal citations omitted). 

Moreover, “[a] court is not required to analyze the elements of an 

ineffectiveness claim in any particular order of priority; instead, if 

a claim fails under any necessary element of the ineffectiveness

test, the court may proceed to that element first.” 

Commonwealth v. Tharp, 627 Pa. 673, 101 A.3d 736, 747 

(2014) (citation omitted).

Commonwealth v. Sarvey, ___A.3d___, 2018 PA Super 307 (Pa.Super. 

Nov. 16, 2018).

First, Appellant claims trial counsel was ineffective in failing to seek the 

suppression of Appellant’s statement to police in which he conceded that he 

was present at the scene of the crime and involved in the fight that occurred 

before the shooting. Appellant argues that the police impermissibly obtained 

this statement through custodial interrogation before providing Appellant with 

his Miranda rights. Moreover, Appellant contends that, but for the admission 
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of the statement, the Commonwealth would have been unable to prove 

Appellant was present at the crime scene or involved in the fight.

We agree with the PCRA court’s determination that this claim lacks 

arguable merit. Our review of the record confirms the PCRA court’s finding 

that Appellant provided no factual basis in his PCRA petition to support his 

bald allegation that he was subjected to custodial interrogation without first 

being given his Miranda rights. Appellant’s failure to properly plead facts to 

demonstrate that his claim has arguable merit is a sufficient basis to deny this 

particular claim.

However, even assuming arguendo that Appellant was improperly 

subjected to custodial interrogation, trial counsel had a reasonable basis for 

refraining from filing a motion to suppress Appellant’s statement, which was

substantially exculpatory. As stated above, Appellant admitted to police that 

he was involved in the fight that occurred before the shooting but averred that 

he did not shoot the victim. The admission of Appellant’s statement into 

evidence would present the jury with Appellant’s assertion that he was not the 

shooter without Appellant having to testify and be subject to crossexamination. Commonwealth v. Goosby, 461 Pa. 229, 231–32, 336 A.2d 

260, 261 (1975) (finding counsel had a reasonable basis to acquiesce to the 

admission of the defendant’s statement in order to use its exculpatory content 

to weaken the prosecution's case); Commonwealth v. Wright, 832 A.2d 

1104, 1110 (Pa.Super. 2003) (finding counsel had a reasonable basis in not 

moving to suppress the appellant’s statement when its admission would allow 
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the jury to hear the appellant’s explanation for his conduct without having the 

appellant testify and be subject to cross-examination). Thus, Appellant is not 

entitled to appellate relief on this claim.

Second, Appellant argues that trial counsel was ineffective in conceding 

that Appellant was present at the scene of the crime and participated in the 

fight that occurred before the shooting. Based on the circumstances and 

evidence presented in this case, we find this claim to be meritless. The 

prosecution obtained two surveillance videos that showed Appellant was 

present at the crime scene at the time of the shooting. In addition, the 

prosecution could present the victim’s prior statement identifying Appellant as 

the shooter as well as Appellant’s own statement admitting he was present at 

the club when the shooting occurred.

As a result, it was a reasonable strategy for trial counsel to concede that 

Appellant was present at the crime scene while arguing that the 

Commonwealth could not prove Appellant was the shooter. We agree with 

the trial court’s observation that it would be difficult for trial counsel to argue 

that Appellant was not present at the crime scene as counsel would need to 

convince the jury to reject overwhelming evidence showing the contrary, 

namely, the video evidence and the testimony of the detectives who identified 

Appellant as one of the participants captured on the surveillance footage. 

Further, our courts have held that it is reasonable strategy for counsel to 

concede unfavorable facts or the defendant’s guilt of a lesser included offense 

in an effort to defend against more serious charges. See Commonwealth v. 
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DeHart, 539 Pa. 5, 18, 650 A.2d 38, 44 (1994) (finding it reasonable for 

counsel to concede the appellant’s guilt with respect to the escape charge in 

an effort to defend against the other more serious charges which could have 

resulted in the imposition of a death sentence).

Moreover, we also reject Appellant’s claim that trial counsel was 

ineffective in failing to discuss with Appellant his strategy to concede 

Appellant’s presence at the crime scene. The United States Supreme Court 

has rejected the suggestion that counsel must discuss all strategic options 

with a criminal defendant:

An attorney undoubtedly has a duty to consult with the client 

regarding ‘‘important decisions,’’ including questions of 

overarching defense strategy. Strickland, 466 U.S., at 688, 104 

S.Ct. 2052. That obligation, however, does not require counsel to 

obtain the defendant's consent to “every tactical decision.” 

Taylor v. Illinois, 484 U.S. 400, 417–418, 108 S.Ct. 646, 98 

L.Ed.2d 798 (1988) (an attorney has authority to manage most 

aspects of the defense without obtaining his client's approval).

Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). 

Our state appellate courts have reached the same conclusion:

We do not hold that counsel's failure to discuss all strategic 

options with a defendant is per se ineffective assistance. “A 

decision by counsel not to take a particular action does not 

constitute ineffective assistance if that decision was reasonably 

based, and was not the result of sloth or ignorance of available 

alternatives.” Commonwealth v. Collins, 519 Pa. 58, 65, 545 

A.2d 882, 886 (1988). See also: Commonwealth v. Christy,

511 Pa. 490, 501, 515 A.2d 832, 837 (1986), cert. denied, 481 

U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987); 

Commonwealth v. Twiggs, 460 Pa. 105, 110-111, 331 A.2d 

440, 443 (1975). “‘[S]trategic choices made after thorough 

investigation of law and facts relevant to plausible options are 

virtually unchallengeable, and strategic choices made after less 
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than complete investigation are reasonable precisely to the extent 

that reasonable professional judgments support the limitations on 

investigation.’” Commonwealth v. Lee, 401 Pa.Super. 591, 600-

601, 585 A.2d 1084, 1089 (1991), quoting Strickland v. 

Washington, supra, 466 U.S. at 690-691, 104 S.Ct. at 2068, 80 

L.Ed.2d at 695. The relevant inquiry in cases such as this is 

whether counsel's failure to pursue a particular defense theory 

was reasonable. See: Commonwealth v. Blair, 491 Pa. 499, 

506, 421 A.2d 656, 660 (1980) (“The decision not to present a 

particular defense is a tactical one and will not be deemed 

ineffective stewardship if there is a reasonable basis for that 

position.”), e.g. Commonwealth v. Davenport, 494 Pa. 532, 

431 A.2d 982 (1981) (counsel's choice of self-defense theory over 

that of voluntary intoxication was reasonable); Commonwealth 

v. Garcia, 370 Pa.Super. 132, 535 A.2d 1186 (1988) (strategy 

seeking acquittal rather than one seeking verdict of manslaughter 

was effective assistance of counsel).

Commonwealth v. Carter, 597 A.2d 1156, 1162–63 (Pa.Super. 1991).

In the instant case, the record belies Appellant’s allegation that he was 

unaware trial counsel would concede to Appellant’s presence at the crime 

scene. Appellant was present when the trial court reached its decision to deny 

the suppression of the video surveillance evidence; thus, Appellant was aware 

that the video footage placing him at the crime scene would be admitted into 

evidence. As noted above, trial counsel was limited in available defense 

strategies as the prosecution had overwhelming evidence to place Appellant 

at the crime scene. As a result, we agree with the PCRA court’s conclusion 

that trial counsel’s decision to concede Appellant’s presence at the scene 

constituted a reasonable tactical strategy that did not require approval by 

Appellant. Accordingly, this ineffectiveness claim fails.

Lastly, Appellant contends that trial counsel was ineffective in failing to 

object to remarks made by the prosecutor in closing argument. This Court 
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has applied the following principles to similar claims of prosecutorial 

misconduct:

A prosecutor is generally allowed to vigorously present and 

argue the case, as long as the comments are supported by 

evidence and contain inferences reasonably derived from that 

evidence. Commonwealth v. Kemp, 562 Pa. 154, 753 A.2d 

1278, 1281 (2000). “The focus of this Court's consideration of 

claims regarding prosecutorial misconduct is to determine 

whether the defendant was deprived of a fair trial and not whether 

the defendant was deprived of a perfect trial.” Id., at 1282 (citing 

Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221, 231 

(1995)); see also Commonwealth v. Holloway, 524 Pa. 342, 

572 A.2d 687 (1990). Thus, “prosecutorial misconduct does not 

occur unless the unavoidable effect of the comments at issue was 

to prejudice the jurors by forming in their minds a fixed bias and 

hostility toward the defendant, thus impeding their ability to weigh 

the evidence objectively and render a true verdict.” 

Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 316 

(2002).

Commonwealth v. Lawrence, 165 A.3d 34, 41–42 (Pa.Super. 2017) 

(quoting Commonwealth v. Cuevas, 574 Pa. 409, 832 A.2d 388, 394 

(2003)). 

Specifically, Appellant argues that the prosecutor improperly suggested 

that the victim recanted his identification of Appellant as the shooter because 

the victim feared retaliation and did not want to be labeled a snitch. Appellant 

also contends that it was improper for the prosecutor to tell the jury that 

individuals in an urban environment live by a street code that discourages 

cooperation with crime investigations.

Upon review of the record, we agree that the prosecutor’s comments 

were supported by the evidence presented in this case. After the victim 
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identified Appellant in a photo array as the shooter, the victim told detectives 

that he did not initially come forward due to fear of retaliation. The victim 

again identified Appellant as the shooter at the October 4, 2012 preliminary 

hearing. At trial, the victim admitted twice on the witness stand that he feared 

retaliation for identifying his shooter. N.T. Trial, 5/13/14, at 143-44, 169. In 

spite of these statements, the victim recanted this identification and claimed

at trial that he was too intoxicated during the incident to identify the shooter. 

In closing argument, the prosecutor attempted to explain the victim’s

reluctance to identify his shooter by highlighting the victim’s own admission

that he feared retaliation for his cooperation with police and providing a 

context for this fear. The prosecutor was properly allowed to explore the 

reasons for the witness’s inconsistent statements as the prosecutor’s

explanation was a fair response to the defense’s attempt to attack the 

reliability of the victim’s identification due to his alleged intoxication. See 

Commonwealth v. Moody, 654 A.2d 1120, 1124 (Pa.Super. 1995) (finding 

that prosecutor’s attempt to explain the witnesses’ initial hesitance to testify 

by referring to the element of fear was a fair response to the defense’s attack 

on the witnesses’ credibility).

Moreover, we agree with the PCRA court’s finding that Appellant has not 

shown that the prosecutor’s statement “prejudice[d] the jurors by forming in 

their minds a fixed bias and hostility toward the defendant, thus impeding 

their ability to weigh the evidence objectively and render a true verdict.” See 
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Lawrence, supra. Therefore, we find trial counsel was not ineffective for 

failing to raise this allegation of prosecutorial misconduct.

For the foregoing reasons, we affirm the order dismissing Appellant’s 

PCRA petition.

Order affirmed.

Judge Lazarus joined the memorandum. 

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/19