J-S07019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEMUEL MARRERO-MONGE, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 437 MDA 2018

Appeal from the PCRA Order February 21, 2018

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

No(s): CP-22-CR-0004798-2010, 

CP-22-CR-0004800-2010

BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 04, 2019

Lemuel Marrero-Monge, Jr. appeals from the order dismissing his 

petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. 

We conclude that Marrero-Monge has waived the claims he raises on appeal 

and that, even if he had not waived them, the claims lack merit. We affirm.

Marrero-Monge was arrested for the murder of Jonathan Martinez 

(“victim”). Jermaine Williams witnessed the shooting, identified MarreroMonge from a photo-array, and identified him in court as the shooter.1

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* Retired Senior Judge assigned to the Superior Court.

1 For a complete recitation of the factual history of this case, please see the 

trial court opinion pursuant to Pennsylvania Rule of Appellate Procedure 

1925(a) filed on direct appeal. See Trial Court Opinion, filed June 1, 2012, at 

2-12.
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On February 29, 2012, a jury found Marrero-Monge guilty of first-degree 

murder, firearms not to be carried without a license, simple assault, and 

criminal conspiracy.2 The trial court sentenced Marrero-Monge to life 

imprisonment on the murder conviction.3 Marrero-Monge filed a Notice of 

Appeal, and this court affirmed the judgment of sentence on February 22, 

2013. Relevant to this appeal, we concluded that the trial court did not err in 

finding the photo array shown to Williams was not unduly suggestive. 

Commonwealth v. Marrero-Monge, Memorandum, No. 625 MDA 2012, at 

16 (Pa.Super. filed Feb. 22, 2013) (“Direct Appeal Memorandum”). On direct 

appeal, Marrero-Monge referenced Williams’ testimony that he believed he 

informed the officers that the shooter had an eyebrow piercing. Appellant’s 

Br., Commonwealth v. Marrero-Monge, No. 625 MDA 2012, at 12-13 

(Pa.Super. filed Sept. 17, 2012). The trial court, however, credited the 

testimony of the detective, who stated Williams’ initial statement to the police 

did not mention a piercing. Trial Court Opinion, filed June 1, 2012, at 6-7 n.15. 

We concluded that Williams did not inform the detective of the eyebrow 

piercing, and stated that “[t]he Commonwealth can hardly be faulted for not 

including other individuals with piercings when Williams never mentioned 

[Marrero-Monge’s] piercing to the detective.” Direct Appeal Memorandum at 

16. We further concluded that Williams had an independent basis for his 

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2 18 Pa.C.S.A. §§ 2502(a), 6106, 2701(a)(3), and 903, respectively.

3 The trial court imposed concurrent sentences for the remaining convictions. 
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identification of Marrero-Monge and therefore, even if the out-of-court 

statement was tainted, Williams’ in-court identification still was admissible. 

Id. at 16-17

Marrero-Monge filed a pro se PCRA petition seeking reinstatement of his 

right to file a petition for allowance of appeal with the Pennsylvania Supreme 

Court, which the PCRA court granted. He filed a petition for allowance of 

appeal, which the Supreme Court denied on December 10, 2014.

On March 3, 2016, Marrero-Monge filed a pro se PCRA petition, claiming 

counsel was ineffective for failing to allege a Brady4 violation during trial and 

failing to object to inconsistent statements made by Corporal Mark Garrett; 

Williams would recant his testimony identifying Marrero-Monge; and the 

Commonwealth violated Brady when it withheld information that the state 

police had the alleged murder weapon in its possession. The PCRA court 

appointed counsel, who filed a Turner/Finley5letter and a petition to 

withdraw as counsel. 

On January 22, 2018, the PCRA court granted counsel’s petition to 

withdraw and issued notice of its intent to dismiss the PCRA petition without 

a hearing. The court found that although the petition was timely, the issues 

raised lacked merit. On February 8, 2018, Marrero-Monge filed a pro se

document, noting the court’s notice of intent to dismiss and its grant of the 

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4 Brady v. Maryland, 373 U.S. 83 (1963).

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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petition to withdraw, and requesting that the court appoint counsel to assist 

in filing a response. On February 21, 2018, the PCRA court denied MarreroMonge’s request for the appointment of counsel and dismissed the petition. 

Marrero-Monge filed a notice of appeal.

Marrero-Monge raises the following issue on appeal: “Whether the PCRA 

court erred as a matter of law and/or abused its discretion in dismissing 

[Marrero-Monge’s] PCRA [petition] without a hearing where [Marrero-Monge] 

was not properly served with the PCRA court’s pre-dismissal notice of intent 

to dismiss as required by Pa.R.Crim.P. 907?” Marrero-Monge’s Br. at 4.

Marrero-Monge claims the PCRA court sent its notice of intent to dismiss 

to a “Lemuel Marrero-Monge other than Appellant, bearing the wrong inmate 

number, and at the wrong state correctional institution.” Id. at 14. MarreroMonge claims his inmate number is not the inmate number listed on the 

mailing and that he is incarcerated at SCI Huntington, not SCI Greene, as 

listed on the mailing. He claims he did not receive the court’s notice until 

February 16, 2018, when the PCRA counsel forwarded him a copy of the order 

and informed him that counsel had been granted permission to withdraw. Id. 

Marrero-Monge is not entitled to relief. He filed with the PCRA court a 

request for appointment of counsel for assistance in filing a response to the 

court’s notice of intent to dismiss. This document was dated “Thursday, 8, 

2018”6 and docketed on February 15, 2018. Marrero-Monge did not file a pro 

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6 February 8, 2018 was a Thursday.
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se response and did not seek an extension of time to do so. The court 

considered the request for appointment of counsel prior to ruling on the PCRA 

petition. Even if the court sent the notice of intent to dismiss to the incorrect 

address, Marrero-Monge still became aware of the notice at least as early as 

February 8, 2018, and could have responded to the notice with any reasons 

that he believed entitled him to relief. 

Although not included in his questions presented, in his brief, MarreroMonge alleges that he had meritorious claims that entitled him to PCRA relief: 

Williams testified at the preliminary hearing that he informed the officers of 

the eyebrow piercing and, therefore, the opinion of this Court on direct appeal 

was based on a faulty premise; the Commonwealth failed to disclose that 

Marrero-Monge’s father admitted that it was he, not Marrero-Monge, who shot 

the victim; and the Commonwealth failed to disclose that Williams had been 

convicted of various crimes, including false identification to law enforcement 

officers.

Marrero-Monge has waived these claims, as they were not raised in his 

pro se petition, not mentioned in his counsel’s Turner/Finley letter, and not 

raised in a response to the court’s notice of intent to dismiss. See Pa.R.A.P. 

302(a) (providing “[i]ssues not raised in the lower court are waived and 

cannot be raised for the first time on appeal”); Commonwealth v. Smith, 

121 A.3d 1049, 1054 (Pa.Super. 2015) (finding claims waived where not 

raised in response to Rule 907 notice).
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Further, even if he had not waived the claims, we would conclude they 

lacked merit.

Marrero-Monge first claims his counsel was ineffective on direct appeal 

because, contrary to what this Court stated, Williams testified that he 

informed the detective that the shooter had an eyebrow piercing. This claim 

lacks merit. Marrero-Monge’s appellate counsel argued on direct appeal that 

the trial court erred in denying the motion to suppress Williams’ identification 

of Marrero-Monge, noting that Williams testified he informed the officers that 

the shooter had an eyebrow piercing. Counsel cannot be found ineffective for 

failing to argue something that counsel did, in fact, argue. Further, this Court 

noted that the trial court credited the testimony of the detective, who testified 

that Williams’ initial description of the shooter did not include that the shooter 

had an eyebrow piercing. In addition, we concluded that, even if this was 

error, Williams’ in-court identification would have been admissible because 

Williams’ had an independent basis for his identification. Therefore, MarreroMonge’s claim that his trial counsel was ineffective regarding the appellate 

claim as to Williams’ pre-trial identification lacks merit. 

Marrero-Monge next claims the Commonwealth failed to disclose 

exculpatory evidence consisting of a statement made by Marrero-Monge’s 

father admitting that the father shot and killed the victim and Williams’ prior 

convictions for false identification to law enforcement and tampering with 

physical evidence. 
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Under Brady, the Commonwealth’s “failure to divulge exculpatory 

evidence is a violation of a defendant’s Fourteenth Amendment due process 

rights.” Commonwealth v. Ly, 980 A.2d 61, 75 (Pa. 2009). “[T]o establish 

a Brady violation, a defendant is required to demonstrate that exculpatory or 

impeaching evidence, favorable to the defense, was suppressed by the 

prosecution, to the prejudice of the defendant.” Id. (quoting Commonwealth 

v. Gibson, 951 A.2d 1110, 1126 (Pa. 2008)). Further, “Brady evidence may 

not be cumulative of other evidence, cannot have been equally available to 

the defense, and cannot have been discoverable through the exercise of 

reasonable diligence.” Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 

2013) (citations omitted). Where a petitioner raises a Brady claim in a PCRA 

petition, he or she must demonstrate that the alleged Brady violation “so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” Ly, 980 A.2d at 76.

Marrero-Monge first claims the Commonwealth failed to disclose that his 

father told the police that he, not Marrero-Monge, shot the victim. There is no 

evidence that such a statement exists. In fact, on direct appeal, MarreroMonge claimed that his father’s statement implicated Marrero-Monge in the 

shooting.7 Further, if such a statement did exist, it would have been equally 

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7 On direct appeal, Marrero-Monge claimed that the trial court erred in 

admitting his father’s statement because the statement implicated him. This 

Court concluded the claim lacked merit, noting: “Lemuel Marrero, Sr. was 

granted immunity but refused to testify, and was held in contempt of court.
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available to the defense or discoverable with reasonable diligence, as the 

alleged witness was Marrero-Monge’s father, and the father refused to testify 

for the Commonwealth at trial.

Marrero-Monge next claims the Commonwealth failed to disclose that 

Williams had prior convictions. Again, there is no evidence in the record of 

such convictions. Further, if such convictions did exist, they were discoverable 

by the exercise of due diligence and therefore not Brady evidence. See 

Simpson, 66 A.3d at 264.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/04/2019

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No statement from Lemuel Marrero, Sr. was ever introduced at [MarreroMonge’s] trial.” Direct Appeal Memorandum at 21 (citations to record 

omitted).