J-S07017-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LUIS MANUEL VELEZ-DIAZ JR.

Appellant No. 1472 MDA 2016

Appeal from the PCRA Order August 11, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0002856-2014

BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 07, 2017

Luis Manuel Velez-Diaz, Jr., appeals pro se from the order, entered in 

the Court of Common Pleas of Lancaster County, dismissing his petition filed 

pursuant to the Post Conviction Relief Act (PCRA).1 Upon review, we affirm.

Velez-Diaz was convicted of criminal trespass for breaking into a 

residence at 331 Susquehanna Street, Lancaster, Pennsylvania. Velez-Diaz 

had resided in the home, but Jhira Montalvo-Pereira obtained a protection 

from abuse (PFA) order against him, prohibiting him from entering the 

residence. Velez-Diaz asserts that he was not properly notified of the PFA 

order. He was convicted following a jury trial and was sentenced on July 10, 

2015, to 16 months’ to 5 years’ imprisonment. Through counsel, Velez-Diaz 

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1 42 Pa.C.S. §§ 9541-9546.
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filed a motion to modify sentence, which was denied on July 31, 2015. 

Velez-Diez filed a counseled direct appeal of his sentence, which this Court 

affirmed on April 15, 2016. Thereafter, he filed the instant PCRA petition on 

April 28, 2016. Counsel was appointed and then permitted to withdraw. 

Velez-Diaz is proceeding pro se on appeal and raises raises the 

following issue for our review:

Was appellate counsel ineffective for failing to raise a sufficiency 

of the evidence argument on appeal, when it is clear that the 

Commonwealth has not met its burden of establishing the 

elements of the offense of criminal trespass?

Brief for Appellant, at 1.

Our standard and scope of review regarding the denial of a PCRA 

petition is well-settled. We review the PCRA court’s findings of fact to 

determine whether they are supported by the record, and review its 

conclusions of law to determine whether they are free from legal error. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our 

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

record, viewed in the light most favorable to the prevailing party at the trial 

level. Id.

Ineffectiveness of counsel is shown where “(1) the 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 proceedings would have been different.” 
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Commonwealth v. Lambert, 797 A.2d 232, 243 (Pa. 2001). Failure to 

establish any prong will defeat an ineffectiveness claim. Commonwealth v. 

Walker, 36 A.3d 1, 7 (Pa. 2011).

In this matter, Velez-Diaz’s sole argument is that the date of service of 

the PFA order absolves him of wrongdoing. Velez-Diaz asserts that the 

affidavit used to charge him indicated that he was served with the PFA order 

on May 10, 2014, but the return of service form shows the date of May 28, 

2014, as the actual service date. Because the date of his alleged trespass 

was May 12, 2014, Velez-Diaz argues that he did not have notice until 16 

days afterward. Accordingly, he argues that the Commonwealth could not 

prove that he was guilty of criminal trespass.2 This argument is without 

merit.

The testimony of Lancaster City Police Officer Jessica Higgins indicated 

that Velez-Diaz had actual notice that he did not have legal authorization to 

enter the premises of 331 Susquehanna Street prior to doing so on May 12, 

2014. Officer Higgins’ testimony establishes that she verbally instructed 

Velez-Diaz on May 10, 2014, that he was not permitted to return to 331 

Susquehanna Street. N.T. Jury Trial, 4/20/15, at 137. See

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2 To convict a person of criminal trespass, the Commonwealth must prove 

that the person, “knowing that he is not licensed or privileged to do so, . . . 

breaks into any building or occupied structure or separately secured or 

occupied portion thereof.” 18 Pa.C.S. § 3503.
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Commonwealth v. Padilla, 885 A.2d 994, 998 (Pa. Super. 2005) (“verbal 

explanation provided [] over the telephone was adequate to convey notice 

that a PFA order had been entered against [defendant] and that violation of 

that order placed him at risk of criminal penalty”). Accordingly, the basis for 

Velez-Diaz’s ineffectiveness of counsel argument argument lacks merit and 

his claim cannot succeed. Lambert, supra; Walker, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2017