J-S04022-15

*Retired Senior Judge 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

FELIPE VEGA, JR.,

Appellant No. 293 MDA 2014

Appeal from the PCRA Order entered January 27, 2014,

in the Court of Common Pleas of Dauphin County,

Criminal Division, at No(s): CP-22-CR-0000340-2007

BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 09, 2015

Felipe Vega, Jr., (“Appellant”) appeals from the order denying his 

petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. sections 9541-46. We affirm. 

The pertinent facts are as follows:

A jury found Appellant and his co-defendant/cousin, Carlos 

Lopez-Malave, guilty of second degree murder, robbery, 

conspiracy to commit robbery, burglary, and conspiracy to 

commit burglary in connection with the home invasion, 

robbery and fatal shooting of Cung Duong, the owner of a 

Harrisburg pool hall and a well[-]known bookie in the 

Harrisburg Asian community. Three other co-conspirators 

were charged with the murder, and entered guilty pleas. 

As part of their plea agreements, they testified against 

[Appellant and his co-defendant] at trial. [The testifying 

co-conspirators included Ronald Whitstyne, Angel Luis 

Rivera-Figueroa, and Quong Luong. A sixth coconspirator, Lebron Johnson, did not testify.] The jury was 
J-S04022-15

- 2 -

informed of the plea agreements and the bargains the coconspirators made in exchange for specifically defined 

sentences. After his conviction, Appellant was sentenced 

to life imprisonment for the murder conviction and 

concurrent terms of imprisonment for the remaining 

charges. Appellant did not file post-sentence motions.

Commonwealth v. Vega, 981 A.2d 937 (Pa. Super. 2009), unpublished 

memorandum at 1-2 (footnote omitted).

Appellant filed a timely appeal to this Court in which he raised the 

following claims of trial court error: 1) admission of a photo array, which 

included a photograph of him bearing the notation, “Harrisburg Police 

Department;” 2) the improper limitation of defense counsel’s crossexamination of a co-conspirator who testified for the Commonwealth, as well 

as disparaging remarks made by the trial court regarding defense counsel’s 

prior cross-examination; and 3) allowing the jury to view an x-ray of the 

victim, showing a severe facture he received as a result of having been shot 

in the leg. See id., unpublished memorandum at 2. Concluding that these 

claims were waived or otherwise meritless, on July 29, 2009, we affirmed 

Appellant’s judgment of sentence. Id. On March 10, 2010, our Supreme 

Court denied Appellant’s petition for allowance of appeal. 

Appellant filed a pro se PCRA petition on March 14, 2011, and the 

PCRA court appointed counsel. However, Appellant later hired private 

counsel (“PCRA counsel”) who replaced court-appointed counsel. Thereafter, 

PCRA counsel filed a supplemental PCRA petition, and the Commonwealth 

filed an answer to the petitions. Following the grant of several continuances, 
J-S04022-15

- 3 -

the PCRA court held an evidentiary hearing on August 3, 2012. Both the 

prosecutor who tried the case for the Commonwealth and Appellant’s trial 

counsel testified. At the conclusion of the hearing, the PCRA court directed 

the parties to file supporting briefs. By order entered January 27, 2014, the 

PCRA court denied Appellant’s petition. This timely appeal followed. Both 

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues:

I. Did the PCRA court err when it dismissed [Appellant’s 

PCRA] Petition because the prosecution withheld material 

evidence, Ronald Whitstyne’s criminal history, in violation 

of Appellant’s state and federal constitutional rights to due 

process?

II. Did the PCRA court err when it dismissed [Appellant’s 

PCRA] Petition because trial counsel ineffectively prepared 

for trial by failing to obtain Ronald Whitstyne’s criminal 

history?

Appellant’s Brief at 3.

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA court is 

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

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a 

hearing on the petition if the PCRA court determines that the petitioner’s 

claim is patently frivolous and is without a trace of support in either the 
J-S04022-15

- 4 -

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 

1104 (Pa. Super. 2001). 

To be eligible for post-conviction relief, a petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from one or more of the enumerated errors or defects in 42 

Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been 

previously litigated. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 

2012). An issue has been "previously litigated" if “the highest appellate 

court in which the petitioner could have had review as a matter of right has 

ruled on the merits of the issue, or if the issue has been raised and decided 

in a proceeding collaterally attacking the conviction or sentence.” Koehler, 

36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2). If a claim has not been 

previously litigated, the petitioner must prove that the issue was not waived. 

An issue will be deemed waived under the PCRA “if the petitioner could have 

raised it but failed to do so before trial, at trial, during unitary review, on 

appeal, or in a prior state post[-]conviction proceeding.” Id. at 132; 42 

Pa.C.S.A. § 9544(b).

In his first issue, Appellant contends that he is entitled to postconviction relief because the Commonwealth committed a violation of Brady 

v. Maryland, 373 U.S. 83 (1963), in that it failed to disclose, prior to trial, 

Ronald Whitstyne’s complete criminal history, which included two crimen 

falsi convictions. 
J-S04022-15

- 5 -

This Court recently summarized:

In the landmark case of [Brady, supra], the United 

States Supreme Court held that the suppression by the 

prosecution of evidence favorable to an accused upon 

request violates due process where the evidence is 

material either to guilt or to punishment, irrespective of 

the good faith or bad faith of the prosecution. The Brady

rule is not limited exclusively to directly exculpatory 

evidence. Because the reliability of a witness may 

ultimately affect a finding of guilt or innocence, the Brady 

mandate also encompasses impeachment evidence. Thus,

the Supreme Court of the United States held that []there 

are three components of a true Brady violation: The 

evidence at issue must be favorable to the accused, either 

because it is exculpatory, or because it is impeaching; that 

evidence must have been suppressed by the State, either 

willingly or inadvertently; and prejudice must have 

ensued.

Commonwealth v. Feese, 79 A.3d 1101, 1106 (Pa. Super. 2013) (citations 

omitted).

Appellant failed to raise an alleged Brady violation in his direct appeal. 

Thus, his claim is waived under the PCRA. Koehler, supra.

1

 Absent 

waiver, our review of the record supports the trial court’s conclusion that 

____________________________________________

1 Appellant’s co-defendant did raise a Brady violation as an issue in his 

appeal. We agreed with the trial court that Lopez-Malave failed to meet his 

burden of proof because he “failed to show that there was a reasonable 

probability that the outcome of trial would have been different with the 

proffered impeachment evidence,” and that Lopez-Malave “was not 

prejudiced because there was other inculpatory evidence presented at trial.” 

Commonwealth v. Lopez-Malave, 4 A.3d 695 (Pa. Super. 2010), 

unpublished memorandum at 7. As discussed supra, the PCRA court 

reached the same conclusion regarding the merits of Appellant’s postconviction claim. 
J-S04022-15

- 6 -

Appellant did not meet his burden of proof with regard to his claim. The trial 

court explained:

[Appellant] clearly fails to prove the third element of a 

Brady violation, which is that he was prejudiced by the 

concealment or suppression.

***

The jury in this case heard Ronald Whitstyne testify that 

as part of his plea agreement, he agreed to plead guilty to 

third degree murder, robbery, and criminal conspiracy to 

commit robbery and to testify against the co-defendants in 

exchange for a sentence of five to ten years. Furthermore, 

the jury was specifically warned during closing instructions 

that the testimony of the three accomplices – Whitstyne, 

Rivera-Figueroa and Luong – offered against their coconspirators should be viewed with disfavor. The jury was 

instructed, among other things, that accomplices often 

testify falsely in the hopes of obtaining favorable treatment 

and that as such, their testimony can be considered to 

derive from a corrupt or polluted source. The jury was 

thus apprised of both Whitstyne’s dubious character 

including that he had been convicted in this incident of 

third degree murder, robbery (a crimen falsi crime) and 

criminal conspiracy to commit robbery, and that Whitstyne 

had a strong motive to testify falsely. It is highly unlikely 

under these circumstances that evidence of an additional 

crimen falsi crime and corresponding crimen falsi

instruction would have tipped the scales such that the jury 

would have discredited Whitstyne’s testimony in its 

entirety.

Furthermore, Whitstyne’s testimony was not the only 

evidence produced against [Appellant]. Whitstyne’s 

testimony was essentially cumulative to that of RiveraFigueroa, each offered testimony concerning [Appellant’s] 

participation in the home invasion, robbery and shooting 

that was identical to the other’s in all substantive aspects. 

Quong Luong’s testimony further supported each of their 

versions wherein he identified in detail [Appellant’s] 

lengthy interest in robbing Cung Duong including casing 

the victim’s property, obtaining specific information as to 
J-S04022-15

- 7 -

Duong’s habits and purchasing walkie talkies, one of which 

was retrieved from the crime scene. Other evidence 

clearly implicated [Appellant’s] involvement in the crimes, 

independent of Whitstyne’s testimony, including that 

[Appellant] drove the wounded Rivera-Figueroa in the 

black SUV to the hospital within minutes of the shootings, 

as revealed on surveillance tapes, and that a phone 

number [Appellant] was known to use was in constant 

contact with numerous other telephone numbers used by 

the other perpetrators of the crimes. In light of this 

additional evidence, [Appellant] did not meet his burden of 

showing that he was prejudiced by the failure of the 

Commonwealth to provide the 2003 crimen falsi evidence.

PCRA Court Opinion, 1/27/14, at 11-13 (citation and footnotes omitted).2

Our review of the record and pertinent case law involving alleged 

Brady violations supports the PCRA court’s conclusions. Thus, even if not 

waived under the PCRA, Appellant’s first issue would not entitle him to relief.

In his remaining issue, Appellant asserts that trial counsel was 

ineffective because he “failed to search for, obtain, and use Whitstyne’s 

[crimen falsi] convictions as impeachment evidence.” Appellant’s Brief at 9. 

According to Appellant: “[Trial counsel] testified at Appellant’s PCRA hearing 

that he could have used those convictions as impeachment evidence and the 

evidence absolutely may have changed the outcome of the trial.” Id.

____________________________________________

2 Although within his brief Appellant also refers to a 2002 retail theft 

conviction, the PCRA court found as fact that this record was provided to 

Appellant’s trial counsel. PCRA Court Opinion, 1/27/14, at 8. Additionally, 

the PCRA court concluded that the language it provided to the jury regarding 

accomplice testimony (corrupt source) “is considerably stronger regarding 

the potential of a witness-accomplice to be untruthful than the language in a 

crimen falsi instruction, if one had been provided.” Id. at 12, n.8.

 
J-S04022-15

- 8 -

To obtain relief under the PCRA premised on a claim that counsel was 

ineffective, a petitioner must establish by a preponderance of the evidence 

that counsel's ineffectiveness so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place. 

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, 

counsel’s performance is presumed to be constitutionally adequate, and 

counsel will only be deemed ineffective upon a sufficient showing by the 

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the 

underlying claim is of arguable merit; (2) counsel had no reasonable 

strategic basis for his or her action or inaction; and (3) petitioner was 

prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" 

requires the petitioner to show "that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would 

have been different." Id. Counsel cannot be deemed ineffective for failing 

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 

(Pa. Super. 2003).

In assessing a claim of ineffectiveness, when it is clear that appellant 

has failed to meet the prejudice prong, the court may dispose of the claim 

on that basis alone, without a determination of whether the first two prongs 

have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 

1995). Counsel will not be deemed ineffective if any reasonable basis exists 

for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa. 
J-S04022-15

- 9 -

1994). Even if counsel had no reasonable basis for the course of conduct 

pursued, however, an appellant is not entitled to relief if he fails to 

demonstrate the requisite prejudice which is necessary under Pennsylvania's 

ineffectiveness standard. Douglas, 645 A.2d at 232. Counsel cannot be 

deemed ineffective for failing to pursue a meritless claim. Commonwealth 

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 

852 A.2d 311 (Pa. 2004). 

Moreover, trial counsel's strategic decisions cannot be the subject of a 

finding of ineffectiveness if the decision to follow a particular course of action 

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

available alternatives. Commonwealth v. Collins, 545 A.2d 882, 886 (Pa. 

1988) (cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204 

(Pa. 1997)). Counsel's approach must be "so unreasonable that no 

competent lawyer would have chosen it." Commonwealth v. Ervin, 766 

A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 

431 A.2d 233, 234 (Pa. 1981). Our Supreme Court has defined 

“reasonableness” as follows:

Our inquiry ceases and counsel’s assistance is deemed 

constitutionally effective once we are able to conclude that 

the particular course chosen by counsel had some

reasonable basis designed to effectuate his client’s 

interests. The test is not whether other alternatives were

more reasonable, employing a hindsight evaluation of the 

record. Although weigh the alternatives we must, the 

balance tips in favor of a finding of effective assistance as 

soon as it is determined that trial counsel’s decision had any 

reasonable basis.
J-S04022-15

- 10 -

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com. 

ex rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)). See 

also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining 

that a defendant asserting ineffectiveness based upon trial strategy must 

demonstrate that the “alternatives not chosen offered a potential for success 

substantially greater than the tactics utilized”). A defendant is not entitled 

to appellate relief simply because a chosen strategy is unsuccessful. 

Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995). 

The PCRA court found that trial counsel provided effective assistance 

to Appellant and reasoned:

With regard to [trial] counsel’s alleged ineffectiveness 

for failing to present the 2002 retail theft conviction, 

counsel agreed that he had been apprised prior to trial of 

that conviction in documents supplied to him by the 

Commonwealth. He testified that this evidence was 

admissible as crimen falsi and could have been used to 

impeach Whitstyne but that he chose not to use it. [Trial 

counsel’s] failure to so impeach Whitstyne is thus a claim 

of arguable merit under the PCRA.

This court finds, however, under the second prong of 

the ineffective assistance of counsel test, that trial 

counsel’s decision not to impeach Whitstyne on the 

summary retail theft was based upon a reasonable trial 

strategy. [Trial counsel] explained that he chose not to 

offer it as impeachment because he did not think the retail 

theft conviction “would make that much of a difference” 

since it was a summary violation and because he believed 

he had more powerful impeachment evidence. 

Specifically, [trial counsel] believed there was significant 

impeachment evidence based upon Whitstyne’s role as a 

co-conspirator who agreed to testify for the 

Commonwealth in return for a lenient sentence and that 
J-S04022-15

- 11 -

this impeachment evidence was in fact conveyed to the 

jury. Indeed, Whitstyne testified at trial that under his 

plea deal he would be getting a “large break” and avoiding 

a “murder rap.” As noted above, [the trial court] 

instructed the jury it could disfavor Whitstyne’s testimony 

as it came from a corrupt or polluted source. Since these 

reasons reveal reasonable trial strategy, [Appellant] is not 

entitled to PCRA relief under this claim.

Furthermore, even assuming this was not a reasonable 

strategy, [Appellant’s] claim fails because [trial] counsel’s 

failure to present the 2002 retail theft conviction as 

impeachment evidence caused him no prejudice. In order 

to show prejudice on an ineffective assistance of counsel 

claim, [Appellant] must prove that but for counsel’s 

omission there is a reasonable probability that the 

outcome of the proceedings would have been different. 

This is the same prejudice standard [Appellant] failed to 

meet in attempting to prove a Brady violation. As 

discussed above in detail, the omission of relatively minor 

impeachment evidence against Commonwealth witness 

Whitstyne could not have altered the verdict in this case 

whereby Whitstyne’s testimony was cumulative and 

otherwise corroborated by other witnesses, where 

evidence independent of Whitstyne’s testimony implicated 

[Appellant’s] involvement in the crimes, and where

powerful impeachment evidence was offered against 

Whitstyne at trial concerning his role as an accompliceturned-state’s-witness.

[Appellant] also argues that trial counsel was ineffective 

for failing to obtain the 2003 unsworn falsification 

conviction information and present it to impeach 

Whitstyne. This claim lacks arguable merit since trial 

counsel made reasonable efforts to obtain all of 

Whitstyne’s prior criminal history record. [Trial counsel] 

specifically requested Whitstyne’s prior criminal history 

record from the Commonwealth and duly received the 

NCIC report indicating that history. The credible evidence 

presented, which was offered both by the prosecutor and 

[trial counsel], was that the NCIC reports were routinely 

employed by attorneys within the criminal justice system 

as the best and most inclusive source of prior criminal 

records. [Trial counsel] thus reasonably relied upon the 

criminal records provided him by the Commonwealth and 
J-S04022-15

- 12 -

was not further obligated to make any additional searches,

including within the CPCMS.

Again, even assuming [trial counsel] should have 

discovered the 2003 unsworn falsification conviction 

evidence and further assuming counsel could offer no 

reasonable basis for failing to impeach Whitstyne upon it, 

[Appellant] cannot satisfy the prejudice prong of his 

ineffectiveness claim. [The PCRA court] addressed and 

dismissed this exact prejudice claim under the Brady 

analysis and adopt that reasoning here.

PCRA Court Opinion, 1/27/14, at 14-15 (citations omitted).

Again, our review of the record supports the PCRA court’s conclusions. 

Both Appellant’s alleged Brady violation and ineffectiveness claim fail 

because, given the other evidence presented by the Commonwealth at trial, 

Appellant cannot establish prejudice. Additionally, we note that when, as 

here, the trial court’s credibility determinations are supported by the record, 

they cannot be disturbed on appeal. See Commonwealth v. Battle, 883 

A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility determinations 

are solely within the province of the PCRA court). Thus, because Appellant 

cannot establish the requisite prejudice, his claim of trial counsel’s 

ineffectiveness fails. Travaglia, supra.

For the above reasons, we affirm the PCRA court’s order denying 

Appellant’s PCRA petition.

PCRA Order affirmed.
J-S04022-15

- 13 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/9/2015